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CONTAINING  : 


AX  INVESTIGATION  OF  THE  LAW  OF 
NATIONS.... BY  W.  J.  DUANE. 

DEBATE  IN  THE  SENATE  OF  THE  UNITED 
STATES  ON  AN  AMENDMENT  OF  THE 
SECOND  ARTICLE  OF  THE  CONSTI- 
TUTION.... REPORTED,  1804,  BY  W. 
DUANE. 

THE  DECLINE  AND  FALL  OF  ENGLISH 
FINANCE. ...BY  THOS.  PAINE. 

SPEECH  IN  THE  FRENCH  CONVENTION.... 
BY  THOS.  PAINE. 


TRIAL  OF  JUDGE'  ADDIS  ON.  ...llEPOItTEIi) 
BY  THOS.  LLOYD. 

EXPERIENCE  THE  TEST  OF  GOVERN¬ 
MENT;  OR,  AN  INVESTIGATION  OF 
THE  CONSTITUTION  OF  PENNSYLVA¬ 
NIA.. ..BY  —  A  SENATOR  OF  PENN¬ 
SYLVANIA. 

A  LETTER  FROM  ALEXANDER  HAMILTON 
TO  JOHN  ADAMS,  1800. 


DUJIJYE’S  collection. 


PHILADELPHIA,  ritINTEIWlS:13, 


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1 


THE  LAW  OF  NATIONS, 

INVESTIGATED 

y  \ 

IN  A  POPULAR  MANNER, 


ADDRESSED 


TO  THE 


FARMERS  OF  THE  UNITED  STATES. 


BY  WILLIAM  JOHN  DUANE, 

ONE  OF  THE  REPRESENTATIVES  OF  THE  CITY  OF  PHILADELPHIA,  IN  THE 

LEGISLATURE  OF  PENNSYLVANIA. 


But  yet  they  that  have  no  science,  are  in  better  and  nobler  condition,  with 
their  natural  prudence  ;  than  men,  that  by  mis -reasoning,  or  by  trusting  them 
that  reason  wrong,  fall  upon  false  and  general  rules.  Hobees,  Leviath.  c .  5. 


r 


.3 

& 

A 


PHILADELPHIA  : 


PRINTED  BY  WILLIAM  DUANE,  NO.  98,  MARKET  STREET. 

1809. 


# 


\ 


PREFACE. 


TIIE  necessity  of  investigation  into  the  rights  and  laws  of  na¬ 
tions,  at  the  present  time,  is  universally  felt.  If  nations  are  to  maintain 
intercourse  with  each  other,  there  should  be  known,  fixed,  and  invaria¬ 
ble  rules  or  laws,  by  which  that  intercourse  may  be  regulated.  The 
same  uncertainty  which  is  felt  so  oppressively  in  the  uncertainty  of  the 
common  law ,  and  the  opportunity  afforded  to  men  invested  with  power  to 
abuse  that  power,  and  through  its  uncertainiy,  make  it  the  most  galling 
tyranny,  would  alone  be  sufficient  to  convey  an  idea  of  the  injuries  and 
injustice  to  which  mankind  are  exposed,  from  the  want  of  known  and  uni¬ 
versally  received  principles,  or  laws  for  the  government  of  nations  in  their 
intercourse  with  each  other.  If  the  maxims  of  Christianity  were  practised 
by  its  preachers  or  professors,  the  moral  law  would  supercede  the  ne¬ 
cessity  of  a  law  of  nations  ;  but  unfortunately  the  greatest  violators  of 
national  and  social  order,  are  those  who  employ  the  name,  of  “  religion 
and  order,”  as  a  mask  to  cover  outrages  upon  all  mankind. 

The  essays,  which  form  this  pamphlet,  were  not  contemplated  to  as¬ 
sume  this  form.  The  discussions  which  arose  out  of  the  injuries  ex¬ 
perienced  by  the  United  States,  from  the  jealous  envy  and  the  selfish 
monopoly  of  Great  Britain  during  the  last  year,  excited  naturally  a 
great  desire  among  the  thinking  people  of  the  United  States,  to  see 
some  discussion  of  those  social  maxims  which  have  been  heretofore  ac¬ 
cepted  by  all  moral  people  as  laws  sacred  and  inviolable.  Those  maxims 
having  been  overthrown,  and  the  indignation  of  a  free  people  being  ne¬ 
cessarily  excited  by  seeing  the  nation,  as  it  were,  outlawed  from  its  pa¬ 
cific  intercourse  with  the  civilized  world,  these  essays  were  undertaken  as 
well  to  satisfy  curiosity,  as  to  prepare  the  public  mind  for  events,  which 
it  was  not  difficult  to  foresee  must  arise  out  of  the  annihilation  of  all  the 
social  and  moral  obligations  which  have  previously  formed  the  ties  be¬ 
tween  civilized  nations. 

The  discussion  was  taken  up,  in  the  form  of  a  reply  to  the  following 
Questions. 

1 .  What  are  the  laws  of  nations,  and  when,  where,  and  how  were 
they  formed  ? 

2.  What  are  the  maritime  rights  of  belligerents,  and  the  consequent 
duties  of  neutrals  ? 

3.  What  was  the  conduct  of  England,  and  of  France,  towards  neur 
trals,  prior  to  our  revolution  ? 

4.  What  was  the  conduct  of  France  and  England  towards  neutrals, 
during  our  revolution  ? 

5.  What  has  been  the  conduct  of  France  and  England  towards  the 
United  rtates,  since  our  revolution  ? 

6.  What  has  been  the  conduct  of  the  United  States  towards  Franco 
and  England,  since  the  revolution? 

A  number  of  the  most  respectable  citizens,  desired  that  the  essays 
should  be  put  into  the  present  form  ;  they  appeared  originally  under  the 
assumed  signature  of  Paulding  ;  this  preface  is  written,  and  the  publi¬ 
cation  made,  without  any  participation  of  the  author,  whose  name  is 
affixed  to  it  without  his  knowlege,  and  without  any  expectation  of  pe¬ 
cuniary  profit  from  the  publication. 


>  7 


THE  LAW  OF  NATIONS 

INVESTIGATED. 


TO  THE  FARMERS  OF  THE  U.  STATES. 


LETTER  I. 


A  NUMBER  of  questions,  have  been  publicly  offered,  to 
be  answered  by  a  correspondent  of  the  Aurora.  To  do  justice 
to  the  subjects  embraced  by  those  questions,  it  would  be  neces¬ 
sary  to  possess  the  ability,  industry,  and  the  volume  of  an  histo¬ 
rian  ;  they  comprise  not  merely  a  history  of  our  own  country, 
but  an  important  part  of  that  of  Europe,  for  several  centuries. 
As  a  simple  correspondent  for  a  daily  newspaper,  I  can  barely 
offer  some  general  remarks  upon  each  question,  and  in  as  plain  a 
manner  as  possible.  Perhaps  my  attempt  may  induce  those, 
who  are  more  competent,  to  give  full  and  satisfactory  answers. 

The  first  question  to  be  discussed,  is: 

What  are  the  lazes  of  nations ,  and  when ,  where ,  and  how 
vjere  they  formed? 

In  a  free  country,  like  ours,  it  is  not  surprising  that  a  farmer 
should  conclude  from  the  term  lazes ,  that  some  competent  au¬ 
thority  had  compiled  and  enacted  the  laws  of  nations,  as  they 
are  styled :  here,  where  the  voice  of  the  people,  by  their  repre¬ 
sentatives,  creates  and  gives  force  to  all  law,  and  where  nothing 
is  law  without  that  authority,  from  education  and  habit  we  con¬ 
clude  that  there  can  and  ought  to  be  no  law,  unless  competently 
enacted.  The  history  of  the  world  proves,  however,  that  in 
our  ideas  as  in  our  condition  we  are  peculiar  and  alone  ;  in 
every  country  but  our  own,  the  law  originates  in  the  will  of  one 
or  a  few,  and  that  will  is  too  often  the  result  of  arbitrary  or  ambi¬ 
tious  views  without  regard  to  the  happiness  or  interest  of  the 
governed. 

To  those,  therefore,  who  are  not  conversant  with  European 
forms,  the  term  lazes  of  nations  naturally  conveys  the  idea, 
that  at  some  fixed  time  and  place,  there  had  been  an  assembly 
ot  representatives,  from  the  civilized  states  organized  at  the 
time,  who,  instructed  and  anxious  to  dispel  the  yet  lowering- 
clouds  of  feudality  and  barbarism,  had  discussed  and  settled, 
upon  the  principles  of  the  laws  of  nature  and  universal  good  and 
justice.. ..what  it  should  be  lawful  or  unlawful  lor  one  or  more 
nations  to  do. ...or  not  to  do. ...in  their  intercourse  with  the  rest. 

No  doubt,  mv  friends,  mnnv  nf  vrm  have  believed  that  this 


had  such  an  origin. 


6 


The  conclusion,  that  this  was  the  case,  must  have  resulted  from 
the  exercise  of  your  sober  reason  and  reflection.  You  must 
have  thought,  that  if  no  such  system  had  been  formed,  amongst 
ancient  nations,  between  whom  there  was  little  or  no  inter¬ 
course,  and  nine-tenths  of  whom  were  uncivilized;  that,  if 
no  such  system  had  followed  the  dismemberment  of  the  Ro¬ 
man  empire,  when  vandalism  and  fanaticism  struggled  for  the 
mastery,  over  the  minds  and  bodies  of  men  ;  you  must  have 
supposed,  that,  if  in  those  times,  such  a  system  had  not  been 
created,  it  must  undoubtedly  have  followed  the  dispersion 
of  Gothic  darkness,  when  the  age  of  chivalry  had  vanished 
before  the  influence  of  civilization,  commerce,  and  dawning 
science.  You  must  have  thought,  that  as  soon  as  men  be¬ 
came  sensible  of  the  value  of  society,  states  also,  sensible 
of  being  actuated  by  human  passions,  felt  the  necessity  of  shel¬ 
tering  themselves  under  the  canopy  of  laws,  to  obtain  protection 
and  punish  injury,  to  secure  happiness  and  avert  danger ;  laws 
common  to  all,  and  against  which  none  could  rebel,  without 
incurring  punishment  from  the  rest. 

If  any  of  you  have  had  this  picture  before  your  imaginations, 
how  deplorably  have  you  been  deceived  ;  you  cannot  yet  have 
opened  the  bloody  pages  of  European  history.  No,  my 
friends,  although  there  existed,  if  possible,  a  greater  necessity, 
for  the  obedience  of  states,  than  that  of  men,  to  the  laws  of 
nature  and  justice,  no  code  has  been  formed,  no  code  exists, 
of  which  the  authority  is  not  disputed  and  uncertain. 

It  is  true,  that  there  are  among  nations,  as  there  are  among 
men,  immutable,  just,  and  imperishable  laws,  by  which  states 
ought  to  be  governed,  and  to  which  their  conduct  can  always  be 
determined  by  the  exercise  of  our  reason  ;  these  laws  are  the  laws 
of  nature  itself;  but  these  are  not  what  are  termed  the  laws  of 
nations,  they  are  even  in  some  important  points,  at  variance 
with  the  latter. 

The  laws  particularly  in  view  at  this  time,  are  those  called 
the  maritime  laws  of  nations.  The  origin  of  those  laws  is  as 
uncertain  as  that  of  the  common  law  of  England;  like  it  they 
bear  the  marks  of  feudality  and  ignorance,  and  in  their  inter¬ 
pretation  are  susceptible  of  equal  variation  and  distortion. 
Like  the  common  law,  too,  they  are  scattered  through  the 
pages  of  innumerable  volumes,  from  the  pens  of  monks,  law¬ 
yers,  judges,  statesmen,  and  princes.  Many  of  them  owe  their 
existence  and  authority,  even  to  the  mandates  of  petty  pirates, 
or  to  the  corruption  and  avarice  of  robbers  more  eminent. 

Those  who  profess  to  venerate  this  maritime  system,  tell  us 
that  it  can  boast  of  the  Rhodians,  Romans,  Carthagenians,  of 
ancient  times,  the  Pisans,  Barcelonese,  Arragonese,  Genoese, 
Venetians,  & c.  of  modern  times,  among  the  number  of  its 
founders.  That  is,  the  regulations,  ordinances,  and  decisions 
of  these  different  people,  adopted  by  each  for  its  own  govern¬ 
ment  in  maritime  affairs,  are  represented  as  demanding  the 


7 

reverence  and  obedience  of  states  subsequently  existing.  You 
must  remark,  respecting  these  statutes,  that  many  of  them  were 
in  force,  when  what  is  properly  called  commercial  trade,  scarcely 
had  an  existence,  and  when  men,  much  less  states,  had  but  little 
regard  for  the  immutable  laws  of  nature  and  justice  ;  and  that 
as  the  instances  of  their  variation,  or  disagreement  from  each 
other,  were  in  proportion  to  the  number  of  those  enacting  them, 
there  was  no  common  consent  as  to  their  justice  or  force. 

This  is  the  foundation  of  what  I  may  term  the  artificial  ma¬ 
ritime  law  of  nations.  A  superstructure  lias  been  raised  upon 
it,  consisting  of  the  opinions  of  writers  of  different  countries, 
upon  questions  arising  out  of  national  wars  and  disputes  on  the 
ocean.  The  first  work,  comprising  the  statutes  above  mention¬ 
ed,  and  commentaries  by  the  writer,  was  called  II  Consolato 
del  Mare ,  (meaning  maritime  jurisprudence  or  law)  and  pub¬ 
lished  about  800  years  ago  at  Pisa,  at  that  time  the  reputed 
mistress  of  the  ocean.  Commentaries  upon  this  work,  and 
discussions  of  maritime  questions,  subsequently  arising,  have 
been  added  to  the  stock  of  artificial  law,  by  writers  of  every 
nation  of  Europe,  that  had  at  any  time  a  share  in  its  commerce. 

It  follows  then,  that  there  never  has  existed,  that  there  does 
not  now  exist,  any  system  or  written  law,  which  from  its  origin, 
construction,  or  authority,  can  or  ought  to  control  the  conduct 
of  independent  states  ;  and  that  the  works  which  I  have  mention¬ 
ed,  are  of  no  further  consequence  than  precedents,  disagreeing 
according  to  their  origin,  and  groundless  unless  established  upon 
the  only  just  basis,  the  law  of  nature. 

It  matters  not  where  any  decision  was  made,  who  was  the 
reporter  or  commentator,  unless  the  law  of  nature  sanctions  the 
artificial  law  of  men  or  states,  the  latter  is  of  no  force  nor  effect, 

I  ought  to  have  mentioned  in  a  more  fit  place,  but  presume 
it  will  answer  as  good  a  purpose  here,  that,  besides  the  ordi¬ 
nances  I  have  stated,  and  the  commentaries  of  various  writers, 
certain  stipulations  in  treaties,  or  the  tacit  tolerance  of  particular- 
acts,  have  also  been  pressed  into  the  service  of  those,  who  quote 
the  laws  of  nations,  and  have  been  pronounced  a  part  of  that 
law.  But  no  greater  reliance  can  be  placed  on  these,  than  upon 
the  ordinances  and  commentaries  ;  they  vary  with  every  war, 
and  clash  almost  universally  with  each  other. 

Notwithstanding  this  total  want  of  a  covenanted  or  authori¬ 
zed  law,  it  is  certain.... 

That  there  are  natural  laws  of  nations,  founded  in  justice 
and  in  right,  the  nature  and  obligations  of  which  reason  teaches 
us  to  ascertain  and  observe  ;  that  these  laws  being  immutable 
and  common  to  all,  they  ought  to  command  universal  reverence 
and  respect,  and  that  whatever  nation  violates  one  or  all  of  them, 
commits  a  trespass  upon  the  rights  of  all  nations  and  of  ail  men, 
lor  which  it  is  to  be  regretted  no  responsibility  has  as  vet  ever 
been  exacted. 


8 


What  are  usually  termed  the  laws  of  nations,  I  consider  to  be 
artificial  laws,  the  work  of  men  ;  and  although  pretended  to 
be  founded  upon  the  laws  of  nature,  they  are  so  various  and 
repugnant  as  well  to  each  other  as  often  to  the  law's  of  nature 
themselves,  that  as  a  system  they  have  no  force  nor  authority 
of  their  own.  If  there  are  any,  that  owe  their  merit  to  their 
justice  and  consonance  with  right  and  reason,  they  deserve  all 
our  regard,  but  until  thus  tested  we  ought  never  to  adopt  them; 
for,  I  repeat,  the  artificial  la  tv  of  nations,  from  the  nature  of  its 
origin  and  formation,  is  necessarily  calculated  to  produce,  and 
ought  to  excite  doubts  in  the  minds  of  freemen,  of  its  purity  and 
excellence. 

Such,  farmers  of  America,  are  my  opinions  :  weigh,  and  value 
diem,  according  to  your  sense  of  their  soundness  or  uncertainty, 
for  it  is  of  much  consequence,  to  the  discussion  of  the  remaining 
questions,  that  you  should  well  understand  that  upon  which  I 
have  now  given  my  sentiments. 

February  7,  1809. 


LETTER  II. 


IN  the  preceding  letter  I  have  simply  endeavored  to  ex¬ 
plain  my  sentiments  respecting  what  are  termed  the  lazvs  of  na¬ 
tions,  My  conclusions  were  That  the  nature  and  origin 

of  those  artificial  laws  of  nations,  were  not  such  as  to  entitle 
them,  as  a  svstem,  to  the  faith  or  observance  of  free  states:.... 
2.  That  no  law,  regulation,  or  custom,  however  ancient,  howe¬ 
ver  created,  or  by  whatever  nations  adopted,  ought  to  be  obli¬ 
gatory,  unless  founded  upon  the  immutable  basis  of  universal 
rood  and  moral  justice. 

To  be  able  to  determine,  with  some  precision,  the  next  ques¬ 
tion  that  is,  u  zvhat  are  the  maritime  rights  of  belligerents ,  and 
the  consequent  duties  of  neutrals  it  may  be  useful  to  divide 
into  particular  terms  or  epochs,  the  time  that  has  passed  from 
the  first  known  subserviency  of  navigation  to  the  purposes  cf 
trade,  and  note  the  practices  of  nations  in  each  term. 

The  Arabians,  inhabiting  the  borders  of  the  Red  Sea,  are  re¬ 
presented  by  various  authors,  particularly  by  Robertson,  in  his 
history  of  America,  as  the  first  navigators,  in  barks  roughly 
constructed  and  propelled  by  oars  along  the  coast,  of  which  they 
took  care  never  to  lose  sight.  This  people,  however,  scarcely 
deserve  the  character  of  a  commercial  state  ;  the  Phoenicians, 


§ 

or  people  of  Tyre,  were  probably  the  first  entitled  to  that  dis¬ 
tinction.  I  will  therefore  state  the 

First  term  of  about  1700  years,  from  the  building  of  Tyre,  to 
the  destruction  of  Rome,  in  the  fifth  century  of  the  Chris¬ 
tian  era. 

Second  term  of  about  800  years,  from  the  destruction  of  Rome, 
to  the  1 3th  century,  when  the  mariner’s  compass  was  invented. 

Third  term  of  about  500  years,  from  the  period  of  the  inven¬ 
tion  of  the  mariner’s  compass,  to  the  present  time. 

Within  the  first  term,  force  alone  constituted  right ,  and  there 
were  nearly  as  many  sovereigns  of  the  seas  then  navigated,  as 
there  were  existing  states.  With  but  one  exception,  all  the  ma¬ 
ritime  cities  or  states,  which  flourished  within  that  term,  exer¬ 
cised  warlike  dominion,  in  proportion  to  their  strength  or  means  $ 
commerce  tvas  in  most  instances  but  a  secondary  consideration, 
conquest  wTas  the  first.  The  Phoenicians,  Egyptians,  the  cities 
of  Greece,  and  the  Carthagenians,  each  in  their  turn,  claimed 
the  supremacy  of  the  ocean,  and  evinced  their  power  by  acts, 
meriting  the  stigma  of  piracy;  and  lastly  the  Romans,  upon  the 
overthrow  of  Carthage,  exacted  tribute  for  the  use  of  the  seas. 
The  republic  of  the  Rhodians  forms  a  noble  exception  ;  they 
maintained  themselves  by  a  rigid  adherence  to  the  sound  prin¬ 
ciples  of  moral  justice  as  well  as  of  trade  ;  their  commerce 
flourished,  but  it  was  the  effect  of  an  honest  policy,  not  of  a  lust  for 
maritime  or  inordinate  dominion  ;  and  whilst  the  piratical  states 
uniformly  became  victims  of  such  lawless  sway  as  they  had 
themselves  exercised,  the  Rhodians  long  maintained  their  inde* 
pendence  and  their  merited  opulence. 

From  the  general  character  of  the  ancient  maritime  states, 
therefore,  you  may  conclude  that  within  the  first  period  we  can 
obtain  little  or  no  information,  calculated  to  explain  the  nature 
and  extent  of  maritime  rights,  according  to  just  principles. 

In  the  early  part  of  the  second  term,  the  seas,  as  well  as  the 
continent  of  Europe,  became  the  theatres  of  Saracenic  or  barba¬ 
rian  plunder :  all  trade  and  intercourse  were  for  a  long  time  in¬ 
terrupted  or  crushed  by  the  numerous  squadrons  of  the  marau¬ 
ders.  At  length,  arose  a  number  of  sovereigns  of  the  seas,  Ve¬ 
nice,  Genoa,  and  Pisa,  who  contended  with  each  other  in  bloody 
wars  for  maritime  dominion :  each  asserted,  and  maintained  by 
means  scarcely  less  barbarous  than  those  of  the  Saracens,  a  right 
to  exclusive  jurisdiction  and  trade.  Of  these  states,  Venice  ap¬ 
pears  to  have  been  the  most  audacious ;  its  tyranny  was  so 
grievous,  that  the  principal  contemporary  states,  anxious  for 
freedom  of  trade,  found  it  necessary  to  form  confederacies  to 
obtain  it :  their  hostility,  however,  was  averted  by  that  policy, 
to  whjch  England  has  since  been  so  much  indebted  for  her  pow¬ 
er  :  Venice  maintained  a  regular  system  of  corruption  and  es¬ 
pionage  ;  her  factors  were  found  in  every  port,  connected  with 
rhe  state  of  Venice  by  the  immunities  which  they  received,  an^ 

B 


10 


/ 


the  wealth  which  they  every  where  displayed ;  these  factor.' 
were  political  as  well  as  commercial  agents  ;  they  fomented 
jealousies  amongst  neighbors  in  order  to  wreaken  their  pow¬ 
er  and  divert  attention  from  herself ;  they  gained  the  devotion 
of  influential  men  in  the  governments  near  -which  they  resided, 
by  presents  adapted  to  the  taste  or  avarice  of  those  whom  they 
meant  to  seduce  to  their  views  ;,...the  wealth  therefore,  that 
flo-wed  from  an  usurped-  monopoly  of  trade,  enabled  her  to  di¬ 
vide  and  bid  defiance  to  those  states,  which  by  their  union  might 
have  annihilated  her  odious  tyranny, 

I  at  length,  arrive  at  that  period  in  the  history  of  the  world, 
when  new  and  great  events  called  for  and  promoted  the  civiliza¬ 
tion  of  mankind.  The  introduction  of  the  mariner  s  compass  ; 
the  discovery  of  a  new  route  to  India,  and  of  America ;  the 
invention  of  the  art  of  printing ;  and  the  employment  of  gun¬ 
powder  ;  promised  effects  proportioned  to  the  greatness  of  the 
era.  Europe  had  scarcely  recovered  from  the  delirium  of  chi¬ 
valry  and  the  crusades,  and  from  wars  in  support  of  the  cross, 
characterised  by  every  species  of  rapine  and  barbarity ;  when 
new  and  more  vast  objects  for  ambition,  avarice,  and  fana¬ 
ticism  presented  themselves. 

In  the  discovery  of  new*  and  immeasurable  seas  and  conti¬ 
nents,  might  have  been  anticipated,  the  extinction  of  wars  for 
maritime  dominion;  that  almost  boundless  cupidity  would  now 
be  satiated,  and  force  give  way  to  the  dictates  of  justice  and 
sound  policy.  The  reverse,  however,  has,  in  every  view,  been 
deplorably  experienced :  the  colonial  system  arose  upon  a  spirit 
of  monopoly  in  proportion  to  the  magnitude  of  the  objects 
presented  ;  the  greediness  for  ships,  commerce,  and  colonies 
encreased ;  contests  for  supremacy  in  the  petty  seas  known 
to  the  ancients,  and  those  between  the  Italian  states  for  the 
monopoly  of  the  Levant  trade,  were  abandoned  for  the  more 
daring  purpose  of  usurping  the  sovereignty  of  the  Atlantic,  the 
Pacific,  and  Indian  oceans.  Avarice  here  too  assumed  the  cloak 
of  religion,  to  cover  the  foulest  murder*  and  robberies,  the  en¬ 
slavement  and  plunder  of  millions  of  innocent  Indians,  in  the 
East  and  West ;  while  fanaticism  rewarded  the  infuriate  zeal 
of  its  emissaries,  by  confirming  by  Papal  Bulls,  the  sovereign¬ 
ty  of  territories  wrested  from  the  rightful  owrners  by  the 
perpetration  of  every  crime.  Instead  of  regarding  as  free 
the  oceans  now  opened,  and  adequate  to  the  most  enthusi¬ 
astic  anticipations  of  commercial  greatness,  the  Europeans  con¬ 
sidered  the  sovereignty  of  the  seas  as  having  acquired  new  charms, 
and  as  calling  for  the  greatest  sacrifices  for  its  maintenance. 

Portugal  and  Spain,  contemporary  rivals  in  foreign  discove¬ 
ries  and  plunders,  were  the  first  to  assert  a  claim  to  the  mono¬ 
poly  of  commerce  and  colonies.  Not  contented  with  boundless 
and  inexhaustible  regions,  never  naturally  interfering  with  thv. 
prosperity  of  each  other,  these  states  engaged  in  wr3trs,  ostensibly 


11 


for  the  possession  of  the  Canaries,  but  really  from  maritime 
jealousy.  Portugal  at  first  maintained  the  claim  to  dominion 
with  most  success,  but  was  ultimately  added  to  the  already  exces¬ 
sive  power  of  her  rival,  by  being  reduced  to  the  Spanish  yoke 
under  Philip  II. 

Spain,  having  already  attained  more  colonial  power  than 
it  possessed  genius  to  manage,  and  being  involved  in  wars  with 
Holland  and  England,  neglected  the  colonies  acquired  from 
the  Portuguese.  The  Dutch,  who  had  just  asserted  their  in¬ 
dependence  of  Spain,  immediately  took  advantage  of  the  state 
of  the  Spanish  colonies,  and  possessed  themselves  of  the  greater 
part  of  them,  and  of  nearly  all  the  consequent  trade.  To 
weaken  Spain  bv  detaching  from  its  authority,  the  Netherlands 
and  these  colonies,  queen  Elizabeth  assisted  the  Dutch ;  not 
from  any  affection  for  them,  but  as  a  part  of  a  system  introduced 
for  the  first  time  with  success  in  Elizabeth’s  reign.. ..beside  jea¬ 
lousy  of  the  power  of  Spain,  she  desired  to  divide  this  monopoly 
the  better  to  possess  it.  England  was  at  this  time  the  most  power¬ 
ful  maritime  state,  owing  to  the  weakness  of  the  continent,  occa¬ 
sioned  by  the  wars  which  Elizabeth  fomented  ;  to  the  invariable 
misfortunes  of  the  Spaniards  in  their  attempts  to  invade  England  ; 
and  to  the  successful  piracies  committed  by  English  cruisers  in 
all  parts  of  the  world,  and  upon  the  commerce  of  all  states. 

The  Dutch,  however,  had  no  sooner  established  their  indepen- 
dence,  than  they  applied  themselves  with  so  much  success  to 
foreign  trade,  as  they  had  already  done  with  regard  to  the  Eu¬ 
ropean  carrying  trade,  that  they  placed  themselves  in  the  first 
rank  of  maritime  powers.  The  death  of  Elizabeth,  placed  the 
trident  in  their  hands  j  they  retained  it  above  a  century,  by  their 
bravery  and  industry  ;  and  lost  it  less  by  their  valor,  than  by  the 
incessant  corruption  and  intrigues  of  England. 

France,  continually  engaged  in  continental  wars,  was  prevent¬ 
ed  from  extending  her  views  to  ships,  colonies,  and  commerce, 
with  that  success  which  must  necessarily  have  followed  a  con- 
centration,  and  direction  to  those  objects,  of  her  genius,  courage, 
and  commercial  situation.  Her  maritime  power,  often  more 
brilliant  and  triumphant,  than  that  of  England  or  Holland,  and 
sometimes  superior  to  that  of  both  united,  was  employed  rather  in 
checking  the  ambition  of  those  two  powers,  and  in  asserting  the 
freedom  of  the  seas,  than  in  efforts  to  establish  a  supremacy  for 
itself. 


The  bloody  and  desolating,  wars,  therefore,  that  have  been 
waged  for  above  four  centuries,  with  very  little  intermission,  have 
terminated  in  the  temporary  gratification  of  the  constant  object 
and  desire  of  England,  by  placing  in  her  hands  the  trident,  and 
with  itthe  monopoly  of  commerce.  So  steady  and  determined  has 
been  the  policy  of  England,  under  all  reigns,  and  ministers,  so 
successfully  has  one  object  been  pursued  without  regard  to  the 
means,  that  the  military  flag  ©f  England,  whirl)  was,,  the  latest 


to  float  in  civilized  Europe,  is  now  almost  the  only  one  to  be  seea 
on  the  ocean. 

In  my  next  number,  I  shall  inquire,  what  were  the  practices 
of  European  states,  during  the  last  term,  or  from  the  14th  cen¬ 
tury,  in  answer  to  the  second  question. 

February  9,  1809. 


LETTER  III. 


What  are  the  maritime  rights  of  belligerents ,  and  the  conSe 

quent  duties  of  neutrals  P” 


IF  the  position,  stated  in  my  first  letter,  be  correct,  as  I 
think  it  is,  that  no  laws  nor  customs  ought  to  be  respected,  un¬ 
less  founded  upon  the  immutable  basis  of  universal  justice,  is 
there  not  something  repugnant  to  the  judgment,  in  the  above 
question  ?  Consulting  common  sense,  is  it  consistent  with  the 
principles  of  universal  good  and  justice,  that  belligerents 
should  have  rights  or  privileges,  injurious  to  neutral  states  j 
rights  arising  out  of  no  faults  of  the  peaceful,  but  from  the  folly 


or  madness  of  belligerents  themselves  ? 


States,  peaceful  and  contented,  however  well  organized  o 
situated,  necessarily  suffer  by  the  suspension  of  the  general 
peace;  yet  another  and  a  greater  evil  awaits  them. ...they  are  re¬ 
quired  and  compelled  to  abridge  their  sovereignty !  Is  this 
just,  is  this  submission  honorable  ?  Surely,  if  particular  states 
determine  to  wage  war  against  each  other,  they  ought  to  bear 
all  the  consequent  evils  ;  neutrals,  who  have  no  agency  in  creat¬ 
ing  or  carrying  on  the  war,  ought  not  to  be  dragged  into  the 
vortex  of  ruin  and  desolation.  Neutrality  is  not  a  new  condi¬ 
tion,  it  is  a  natural  situation,  and  if  any  advantages  arise 
out  of  it,  it  is  the  effect  of  the  measures  of  the  belligerents  ; 
themselves,  who  violate  all  moral  laws  and  justice  by  making 
inhuman  war  ;  if  it  produces  an  encrease  of  trade  and  wealth  to 
the  pacific,  if  it  even  possesses  itself  of  the  trade  that  belligerents 
can  no  longer  carry  on,  those  who  lose  can  only  censure  their 
own  folly  or  ambition,  and  instead  of  envying  the  neutral, 
should  rejoice  that  the  neutral  affords  them  a  portion  of  that  | 
trade  and  intercourse,  which  as  belligerents  they  abandon  or  can¬ 
not  carry  on. 

But,  according  to  the  artificial  laws  of  nations,  a  state  no 
sooner  chooses  to  engage  in  war,  than  it  arrogates  a  new  orga¬ 
nization,  new  powers,  and  new  rights.  Not  content  with  the 
freedom,  that  war  gives,  of  ravaging,  pillaging,  and  destroy¬ 
ing  the  property  and  persons  of  its  enemies,  a  belligerent 


assumes  the  right  to  violate  all  moral  obligations,  and  to  regu¬ 
late  and  determine  zvhat  shall  be  the  rights  and  duties  of  all  the 
states  that  prefer  peace  and  neutrality .  This  creation  of  ar¬ 
bitrary  and  jealous  power  has  no  foundation  in  reason  or  jus¬ 
tice.. ..it  is  at  variance  both  with  the  sovereignty  of  every  free 
state  and  the  natural  law  of  nations  ;  it  is  barbarism  restored. 
Yet,  my  friends,  this  is  the  rule,  that  the  nations  of  modem 
Europe  have  at  various  times  servilely  adopted  ;  this  is  a  mate¬ 
rial  part  of  that  system,  which  at  this  day  subjects  all  commer¬ 
cial  states  to  evils  that  ought  only  to  be  felt  by  those  engaged  in 
wanton  and  wicked  wars. 

When  civilization  succeeded  barbarism,  as  mentioned  in  the 
preceding  letter,  there  arose  a  necessity  for  some  rules  of  conduct 
in  maritime  affairs :  the  only  treatise,  however,  that  was  published 
before  the  discovery  of  America,  was  that  of  the  Pisans,  called 
II  Consolato  del  Mare  ;  its  author  was  unknown,  but  its  princi¬ 
ples  were,  by  the  Italian  states,  respected,  because  they  did 
not  militate  a  great  deal  against  the  claims  of  the  powerful ;  the 
Pisans,  at  the  time,  being  masters  of  the  sea,  gave  this  book 
implicit  authority. 

But,  it  was  not  until  the  discovery  of  America,  that  Eu¬ 
ropeans  thoroughly  felt  the  want  of  a  competent  system  to  res¬ 
train  the  strong  and  protect  the  weak.. ..some  general  laws,  that 
should  produce  the  effects  among  states,  which  municipal  laws 
were  found  capable  of  securing  among  men.  In  the  wars,  car¬ 
ried  on  for  maritime  dominion,  by  Portugal,  Spain,  Holland, 
France,  and  England,  the  commerce  of  the  weak  neutral  states, 
t.he  Hanse-towns,  Sweden,  Denmark,  and  afterwards  Russia,  was 
subjected  to  the  most  grievous  restraints  or  to  wanton  pillage  ; 
nay,  to  such  an  extent  was  lawless  power  extended,  that  the  neu¬ 
trality  even  of  the  powerful  states,  was  but  the  prelude  to  exac¬ 
tions  and  insults  from  the  belligerents.  In  almost  every  state, 
therefore,  reforms  in  belligerent  practices  were  called  for,  and 
tracts  were  published  to  define  belligerent  and  neutral  rights.  The 
laws  of  nature  were  admonitory  enough,  but  they  had  no  weight  in 
the  scale  opposed  to  avarice  or  ambition  ;  and  yet,  men,  writers 
in  different  countries,  fancied  they  could  create  a  reformation  by 
commentaries  on  national  laws  and  belligerent  practices. ...an  idea, 
the  futility  of  which  every  subsequent  war  has  demonstrated. 

It  would  have  been  perfectly  practicable  for  the  European 
states,  in  the  15th  century,  when  there  were  some  years  of 
peace,  to  have  advanced  the  civilization  of  states. ...men  were 
every  day  becoming  more  happy  and  connected,  by  the  progress 
of  science  and  letters. ...but  nations  advanced  no  further,  than 
avarice  or  ambition  desired  :  a  code  of  laws  ought  to  have  been 
framed,  and  could  have  been  adopted,  but  it  did  not  comport  with 
the  views  of  such  tyrants  and  miscreants  as  Philip  II.  of  Spain, 
or  Henry  VIII.  Elizabeth,  or  Cromwell,  and  the  Stuarts  of  Eng¬ 
land,  to  depart  Irom  a  profitable  uncertainty  and  force,  to  certainty 
and  justice  :  they  were  opnosed  to  any  barrier  against  monopolies, 


tod  founded  their  hopes  of  dominion  upon  the  ruin  of  weak  and 
neutral  states.  Hence  the  imperfection,  the  uncertainty,  the  con¬ 
tradictions,  of  what  are  termed  the  laws  of  nations,  features  cha¬ 
racterising  them,  that  every  honest,  and  especially  weak  state, 
is  interested  in  aiding  to  correct. 

These  conclusions,  therefore,  follow  the  consideration  of  the 
question... .u  what  are  the  rights  of  belligerents,  and  the  conse¬ 
quent  duties  of  neutrals  That  the  principles  or  practices 

of  states  are  established  by  no  general  authority  ;  2.  JLhat  bel¬ 
ligerent  rights,  as  they  are  termed,  continue  to  be  arbitrary,  un¬ 
certain,  and  varying  in  every  war;  3.  And  that,  therefore  neu¬ 
tral  states  ought  to  resist  the  exercise  of  every  authority  or  rule, 
not  founded  on  the  laws  of  reason  and  justice. 

But  it  has  been  deceitfully  said,  that  the  rights  which  bellige¬ 
rents  assume  may  be  explained  ;  and  you  may  wish  to  know  how 
those  rights  are  explained,  the  better  to  understand  the  general 
subject,  and  the  particular  condition  of  our  country  at  present.  I 
shall  therefore  endeavor  to  give  you  the  necessary  explanations. 

You  must,  however,  never  lose  sight  ol  the  subversion  of  all 
moral  principles,  in  the  rule  upon  which  they  have  laid  down  as 
ihe  foundation  of  the  system,  that  is,  nations  making  war  have  a 
right  to  make  war  ;  and  out  of  this  they  subsequently  established 
another  principle  more  outrageous,  thatzAe  rights  of  belligerents 
arc  paramount  to  the  rights  of  neutrals;  or  in  other  words,  the 
rights  of  robbers  and  murderers,  are  superior  to  the  rights  of 
the  peaceful  and  the  virtuous. 

The  questions,  which  arose  out  of  such  ethics  as  these,  and 
the  belligerent  practices  on  the  ocean,  in  the  wars  subsequent 
to  the  discovery  of  America,  were  :.... 

1.  To  what  belligerent  ports  may  neutrals  trade  ? 

2.  In  what  goods  may  neutrals  trade  with  belligerents  ? 

3.  Shall  the  persons  and  property  of  enemies  be  free  from 
capture,  when  on  board  neutral  ships  : 

4.  May  neutrals  be  searched,  and  how  ? 

J.  What  shall  be  the  extent  of  a  state’s  jurisdiction,  on  the 
seas  bounding  its  coasts  ? 

As  there  exists  no  code  nor  general  authority,  by  which  to 
determine  those  questions  ;  only  the  causes  that  produced  them, 
and  the  manner  in  which  they  have  been  decided,  can  be  men¬ 
tioned. 

A  free  state,  as  I  remarked  heretofore,  might  refuse  the 
belligerent  jurisdiction,  implied  by  those  questions  :  but  unresist¬ 
ed  customhas  introduced,  and  reconciled  nations  to  a  sort  of  sub¬ 
mission  or  abstinence.  The  practices  of  the  barbarians  in  the 
middle  ages,  were  so  repugnant  to  humanity,  tnat  it  became  an 
object  of 
war  of  as 
duration : 
necessity 


heir  more  civilized  successors  attention,  to  deprive 
nany  of  its  atrocities  as  possible,  and  to  shorten  its 
hence,  belligerents  were  allowed ,  on  the  score  o 
nd  humanity,  to  exercise  certain  privileges  and  pow¬ 


ers  over  neutrals.  Tor  instance 


15 


As  a  town  besieged  or  blockaded,  might  defy  all  assailants 
and  protract  hostilities,  if  neutrals  were  allowed  to  supply  all 
its  wants  ;  nations  have  agreed  that  a  neutral  cannot  lawfully 
enter  and  aid  such  town.  The  answer  to  the  first  question  there¬ 
fore  is,  that  a  neutral  has  a  right  to  trade,  in  goods  not  contra¬ 
band,  to  any  belligerent  port,  that  is  not  in  a  state  of  siege  or 
blockade ;  and  no  town  or  port  is  to  be  considered  blockaded, 
that  is  not  so  well  guarded  by  a  belligerent  force,  both  by  land 
and  sea,  as  to  render  an  attempt,  on  the  part  of  a  neutral  to 
enter,  dangerous. 

This  rule,  which  is  founded  on  motives  of  humanity,  has 
been  adopted  by  every  civilized  nation;  in  works  on  the 
laws  of  nations,  in  treaties  between  states,  and  by  tacit  con¬ 
sent,  this  i  ule,  as  above  stated,  is  zealously  maintained  and 
adopted. 

The  motives,  which  induced  nations  to  admit  this  rmht  to 
belligerents,  also  determined  the  nature  of  the  goods,  in  which 
neutrals  might  lawfully  trade... .it  was  considered,  that  if  neu¬ 
trals  were  allowed  to  supply  belligerents,  with  powder,  ball, 
.11  ms,  and  other  articles  directly  used  in  war,  hostilities  would 
oe  more  sanguinary  and  longer  continued ;  therefore  another 
right  was  allowed  to  belligerents. ...each  was  permitted  to  prevent 
neutrals  from  carrying  to  its  enemies  articles  used  directly  or 
immediately  for  warlike  purposes. 

In  answer  to  the  second  question,  therefore,  neutrals  may 
A  ade  to  belligerent  ports,  not  blockaded,  in  any  articles  but 
those  directly  used  for  warlike  operations. 

This  rule  (also  from  motives  of  humanity)  has  been  adopt¬ 
ed  by  every  civilized  nation,  and  is  sanctioned  by  the  same 
authorities  as  the  former  rule.  Ndtions  have  sometimes  differ¬ 
ed  in  their  designation  of  contraband ,  but  it  is  almost  univer¬ 
sally,  and  indeed  justly,  understood,  that  no  articles  are  con¬ 
traband  but  those  employed  for  the  destruction  of  man  ;  for  if 
this  rule  or  description  may  be  extended  farther,  where  shall 
it  cease?  And  if  contraband  can  be  construed  to  mean  any¬ 
thing  else,  it  may  be  made  to  embrace  the  most  innocent  goods 
and  articles,  because  they  may  support  or  clothe  a  people  at 
1  he  rule  has  been  adopted,  as  I  mentioned,  for  another 
leason,  that  particular  states  must  be  deprived  of  all  trade  if 
contraband  were  extended  even  to  articles  capable  of  being' 
converted  to  warlike  uses....Russia,  Sweden,  or  the  United 
States  could  no  longer  export  to  states  at  war,  iron ,  timber  % 
cordage,  hemp ,  pitch,  tar,  lead,  &c. 

I  beg  you,  my  friends,  to  bear  in  mind  the  causes  that  pro¬ 
duced  the  grant  of  these  rights  to  belligerents.  The  answer  to 
this  question,  which  is  of  much  importance,  necessarily  too 

long  to  be  inserted  in  this  letter,  it  shall  be  answered  m  mv 

next. 

February  11,  1809. 


16 


LETTER  IV. 


a  jChat  are  the  rights  of  belligerents ,  and  the  consequent  du¬ 
ties  of  neutrals 


IN  mv  last  letter,  I  explained,  to  what  belligerent  ports, 
and  in  what  goods  neutrals  might  trade  ;  and  I  shall  now  endea¬ 
vor  to  answer  the  third  question 

“  Shall  the  persons  and  property  of  enemies  be  jree  jrom  cap¬ 
ture ,  when  on  board  neutral  ships  ? 

As  this  is  a  question  of  the  first  importance  to  neutrals,  and 
to  Americans  in  particular,  I  ask  your  undivided  attention  to 

the  inquiry.  .  „  . 

In  the  middle,  or  barbarian  ages,  the  practice  of  bellige¬ 
rents,  was  to  seize  the  persons  and  the  property  of  their  ene¬ 
mies,  wherever  found.  There  was  no  distinction  made  between 
the  property  of  the  state  at  war,  and  the  property  of  its  inoffen¬ 
sive  subjects  ;  there  was  no  discrimination  made  between  t  c 
armed  and  unarmed  subjects  ;  the  sanctity  of  churches  and  ot 
neutral  territory,  were  alike  despised ;  and  men  and  propel  \> 
captured  were  the  reward  of  the  most  strong  and  ferocious,  the 
former  becoming  the  slaves  of  the  conqueror,  the  lattei  glut 

ting  the  rapacity  of  his  soldiers.  .  . 

When  the  introduction  of  commerce,  and  the  art  ot  printing, 
began  to  shew  their  influence  in  Europe,  and  to  dispel  the  Gothic 
darkness  in  which  it  had  been  enveloped  ;  men  and  states  saw 
and  felt  the  necessity  ot  a  reformation  in  warlike  pi  oceedings , 
they  wished  to  abolish  in  war  those  traits  of  cruelty  and  injus¬ 
tice,  above  mentioned,  which  characterised  in  particular,  the 

5th’  6th,  7th,  and  8th  centuries. 

States,  however,  were  not  sufficiently  enlightened,  or  were 
too  jealous  of  each  other,  to  seek  a  reformation  in  the  only 
practicable  and  determinate  manner ;  they  all  professed  to  de¬ 
sire  a  reform,  and  to  deprive  wars  of  as  many  of  their  inhuma¬ 
nities  and  atrocities  as  possible  ;  but  none  proposed  a  conference, 
or  a  convention  of  ministers  from  all  states,  to  fix  a  code  for  the 
guidance  of  all  those,  who  should  thereafter  engage  ;n  war,  or 

p r atio n ,  therefore,  was  left,  as  mentioned 
in  my  last  letter,  to  writers  in  different  countries,  and  at  differ¬ 
ent  times.  These  writers,  in  the  first  instance,  removed  only 
a  part  of  the  injustice  of  belligerents,  but  as  the  world  advanc 
ed  in  knowlege  and  civilization,  reformation  in  warlike  practices 
gradually  progressed  also.  The  rights  of  belligerents  and  neu¬ 
trals  were  explained,  and  nations  confirmed  the  reiormntioi 


17 


called  for  by  those  writers,  in  their  treaties  and  intercourse  with, 
each  other. 

The  greediness  of  commercial  monopoly,  however,  raised  a 
barrier  against  such  a  reformation  on  the  seas,  as  nations  on 
the  continent  of  Europe  had  adopted  in  their  land  wars.  In 
the  latter,  the  rights  of  states  at  war,  and  of  neutrals,  were  well 
explained  and  observed... .but  on  the  ocean,  the  practices  of 
barbarians  were  adhered  to.  For  instance  : 

In  land  wars,  the  conquered  could  no  longer  lawfully  possess 
himSelf  of  the  private  property  of  individuals,  nor  of  the  per¬ 
sons  of  unarmed  men:  but  in  maritime  wars,' private  pro¬ 
perty  continued  to  be  seized,  and  the  persons  of  unarmed 
men  were  exposed  to  all  the  rigors  usually  experienced  by 
prisoners  of  war  taken  in  arms. 

In  land  wars,  a  belligerent  no  longer  seized  the  public  dr  private 
property  of  his  enemy,  if  found  in  a  neutral  territory;  he 
could  not  even  re-capture  that  which  his  enemy  had  taken  and 
lodged  in  a  neutral  state.. ..but  on  the  ocean  belligerents  con¬ 
tinued  to  seize  the  persons  and  property  of  enemies  found  in 
neutral  ships. 


This  inconsistency  so  gross  and  so  glaring,  was  the  effect  of 
commercial  jealousy.  The  first  book,  published  after  the  ex¬ 
pulsion  of  the  barbarians  from  Europe,  laid  down  this  inconsis¬ 
tent  doctrine. ...it  was  the  book  before  referred  to,  II  Consolaio 
del  Mare .  This  production,  of  which  even  the  author  is  not 
known,  written  in  an  age  scarcely  half  civilized,  and  adopted 
by  a  state  that  at  the  time  maintained  by  force  a  monopoly  of 
trade,  continues  to  this  day  the  grand  authority  of  England  for 
perpetrating  on  the  seas  the  practices  of  barbarians,  which  in 
land  wars  have  been  abolished  by  all  civilized  states. 

As  there  was  no  code,  nor  general  authority  adopted  for  the 
government  of  nations,  the  laws  of  nature  remained  the  only 
criterion  for  the  determination  of  all  questions.  According  to 
these  laws,  all  states  possessed  an  inherent  right  to  pursue  their 
own  happiness  in  every  way,  not  infringing  the  natural  rights 
of  others.  They,  therefore,  could  have  lawfully  supplied,  even 
warlike  stores,  to  states  in  hostility  with  each  other,  and  they 
could  have  lawfully  forced  their  way  into  blockaded  ports  :  but 
the  influence  of  civilization  producing  a  desire  to  diminish  the 
means  ol  human  destruction,  and  to  shorten  the  duration  of 
wars,  independent  states  voluntarily  gave  up  a  portion  of  their 
sovereignty,  by  abstaining  from  a  trade  in  contraband,  or  to 
ports  blockaded. 

Inis  reform,  therefore,  originated  in  motives  of  humanity, 
it  was  voluntary  on  the  part  oi  neutrals,  and  not  to  the  conse  ¬ 
quence  ol  any  rights  that  belligerents  could  pretend  to  derive 
Irom  the  circumstance  ol  their  preierring  war  to  peace.  The 
cessation  to  trade  in  contraband  or  to  ports  blockaded,  was  an 
act  of  grace,  for  which  belligerents  should  have  been  thankful ;  but 


18 


this  favor  had  scarcely  been  granted  when  belligerents  asserted 
it  as  a  right  of  their  own,  and  began  to  abuse  it  to  the  injury  oi 
neutrals.  Custom,  and  conventional  law,  or  treaties,  have 
since  fixed  those  gratuitous  favors  as  if  they  were  original  rights 
to  belligerents  and  as  duties  to  neutrals. 

States,  therefore,  having  no  obligations  but  the  laws  of  na¬ 
ture,  and  having  from  their  humanity  alone  abridged  their 
sovereignty,  in  cases  where  its  exercise  would  prolong  and 
ensanguine  war;  it  cannot  be  supposed,  that  they  would  stid 
further  surrender  their  rights,  when  the  exercise  of  them  could 
not  afflict  humanity,  and  when  the  abandonment  of  them  woulc. 

^ ready  injure  their  own  welfare,  their  innocent  trade. 

Xhis  is  the  foundation,  upon  which  I  principally  rest  m} 
answer  to  the  question,  “  shall  the  persons  and  property  ol  ene¬ 
mies  be  free  on  board  neutral  ships?”  which  answer  is.. ..that  a 
belligerent  has  no  right  to  take  unarmed  enemies,  or  the  pro¬ 
perty  of  an  enemy  which  is  not  contraband,  when  found  on  board 

a  neutral  ship.  .  .  .  ,  ,  ,  , 

I  must  here  note  a  distinction,  which  it  is  useful  you  should  un¬ 
derstand.  In  land  wars,  neutral  territory  protects  even  soldiers 
and  warlike  stores  ;  but,  from  the  same  motives  of  humanity* 
dvit  governed  states  in  relation  to  contraband  and  blockade,  it 
is 'a  custom  or  rule,  sanctioned  by  treaties,  that  neutrals  may  not 
convey  troops  nor  arms  to  belligerent  territories,  colonies,  or 

conquests.  _  ,  , 

I  maintain,  then,  that  by  the  natural  laws  of  nations,  and  the 

principles  ot  universal  good  and  justice,  a  neutral  has  a  right  to 
pursue  its  own  welfare,  by  conveying  the  citizens  and  property  ot 
belligerents  from  the  colonies  to  the  mother  country,  or  from  port 
to  port,  when  such  conduct  does  not  violate  the  laws  of  huma¬ 
nity  by  directly  promoting  the  destruction  of  men.  And,  that, 
as  the  laws  of  nature  are  paramount  to  all  otners,  no  customs  01 
conventions  contrary  to  their  dictates,  are  binding  nor  should  be 
respected  by  free  states. 

JHEere  I  might  rest  the  question,  for  I  ha\e  ne.ei  seen  oi 
heard  an  answer  to  this  position  ;  but,  that,  every  argument  01 
pretext,  upon  which  the  right  of  neutrals  to  protect  the  persons 
and  property  of  belligerents  is  contested,  may  be  exposed  to 
vour  scrutiny,  I  shall  proceed  to  a  further  inquiry. 

*  The  doctrine,  laid  down  in  the  Consalata  del  Mare ,  at  a  pe¬ 
riod  when  Europe  was  but  just  emerging  from  barbarism,  and 
adopted  first  by  the  Pisans,  afforded  a  pretext,  to  their  succes¬ 
sors  to  aggrandize  themselves  at  the  expense  of  weak  neutrals. 
Whenever  it  suited  the  views  of  belligerents,  they  either  ad¬ 
hered  to.  or  abandoned,  the  practice  of  seizing  enemies  and  ene¬ 
mies’  property  wherever  found ;  justifying  their  usurpation 
whenever  exercised,  upon  precedent,  not  cm  right,  or  the  natura. 
laws  of  nations. 


19 


It  appears,  that,  in  general,  it  was  the  practice  in  the  14th, 
15th,  and  16th  centuries,  thus  to  violate  neutral  rights.  In  the 
17th  and  18th  centuries,  however,  when  the  introduction  of  the 
mariner’s  compass,  printing,  and  gunpowder.. ..the  discovery  of 
America  and  a  new  route  to  India.. ..had  totally  changed  the 
commerce,  manners,  views,  and  interests  of  European  states  j 
the  rights  of  neutrals  became  at  length  respected,  and  were  only 
infringed  by  nations,  which  had  so  much  power  as  to  forbid  re¬ 
sistance  to  its  exercise  :  the  latitude  for  commerce,  was  con¬ 
ceived  to  be  extensive  enough  for  all  nations ;  those  who  at¬ 
tempted  a  monopoly  of  the  trade  of  the  world,  became  odious 
to  the  rest  of  mankind  ;  and  until  within  the  17th  century,  the 
attempt  at  universal  monopoly,  was  not  dared  to  be  avowed, 
although  the  British  navigation  laws  were  founded  on  the  con¬ 
templation  of  such  an  unsocial  usurpation. 

England,  having,  by  every  species  of  injustice  to  weak  and 
neutral  states,  raised  itself  from  insignificance  to  the  first  rank  of 
commercial  power,  found  that  to  maintain  its  consequence,  it 
was  necessary  to  observe  a  loose  and  indecisive  language  res¬ 
pecting  the  laws  of  nations.  Tt  adopted  the  long  exploded  au¬ 
thority  of  the  Consolato  del  Mare ,  and  obeyed  it  whenever  it  was 
its  interest  to  do  so.  Pursuing  its  usurpation,  in  the  war  with 
France  and  Spain,  in  1745,  a  number  of  Prussian  vessels,  laden 
with  innocent  goods,  but  belonging  to  belligerents,  were  seized 
and  carried  into  British  ports.  Frederic,  the  great,  immedi¬ 
ately  retaliated,  by  sequestrating  the  mortgage  claims  upon  Si¬ 
lesia,  which  England  held  under  the  treaties  of  Breslau  and 
Dresden.  Before  he  took  this  decided  step  in  his  own  defence, 
and  in  support  of  all  neutral  states,  he  had  an  exposition  drawn 
up  of  the  principles,  by  which  he  was  actuated.  This  was  the 
first  time,  that  the  rights  of  neutrals  were  formally  discussed 
and  explained.  The  Prussian  manifesto  was  presented  to  the 
court  of  London,  in  1752,  and  in  1 753  an  answer  was  returned, 
defending  the  practice  of  seizing  enemy’s  property  in  neutral 
ships  ; .. ..this  answer  was  drawn  up  by  four  lawyers  in  the  pay 
of  the  British  crown,  and  was  presented  by  the  duke  of  New¬ 
castle,  the  British  minister. 

In  the  war  of  1756,  three  years  after  the  protest  of  Frede¬ 
ric  of  Prussia,  the  British  again  usurped  the  power  of  seizing 
neutral  vessels,  conveying  goods  belonging  to  belligerents : 
they  stopped  and  sent  in  for  adjudication  a  number  of  Danish 
vessels.  Phis  produced  an  able  defence  of  neutral  rights  by 
AL  Hubner,  under  the  authority  of  the  king  of  Denmark, 
i  he  British  ministry  attempted  to  answer  M.  Hubner,  in  a 
pamphlet  written  by  Mr.  Charles  Jenkinson,  afterwards  lord 
Liverpool. 

Here,  then,  we  have  formal  and  elaborate  treatises,  written 
under  the  sanction  of  the  respective  governments  ;  and  must 
presume  that  each  contained  the  best  possible  arguments  ir* 


20 

support  of  the  respective  doctrines.  Qf  the  memorial  of  Prus¬ 
sia,  or  the  treatise  of  Hubner,  I  speak  only  from  the  character, 
given  of  them  in  different  works  of  authority  and  merit,  and 
upon  these  I  form  my  conclusion  of  their  excellence.  It  is  of 
more  consequence  that  you  should  know,  what  the  British  ad¬ 
vance  in  support  of  their  usurpation,  and  the  substance  is  there¬ 
fore  now  given,  from  ]Mr.  Jenkinson,  who  is  the  standard  au¬ 
thority  in  their  admiralty  courts. 

He"  maintains,  that  belligerents  have  a  right  to  seize  the 
property  of  enemies,  found  on  board  neutral  ships  ; 

“  1.  Because  numerous  authors,  of  weight  and  celebrity,  who 
have  written  upQn  the  laws  of  nations,  have  maintained  that 
right. 

u  2.  Because  the  general  practice  of  nations,  as  recorded  in 

history,  shews  that  it  was  at  all  times  an  acknowleged  right  cf 
•>  * 

belligerents. 

“  3.  Because  a  neutral,  in  carrying  the  trade  of  a  state  at 
war,  supports  its  revenue,  and  indirectly  increases  the  num¬ 
ber  of  its  seamen... .thereby  aiding  the  belligerent  in  conducting 
the  war... .a  state  of  things  calculated  to  induce  neutrals  to  ex¬ 
cite  contentions,  in  the  expectation  of  profit.” 

Such  are  the  principal  arguments,  or  grounds,  upon  which 
the  belligerent  claim  is  set  up  of  regulating  the  commerce  of 
neutrals.  You  will  see,  that  they  indirectly  assert  an  absolute 
dominion  oyer  the  ocean ;  and  that  the  principles  it  admitted, 
would  go  to  authorise  France  as  well  as  England,  if  France  had 
or  should  have  a  more  powerful  navy,  to  claim  and  exercise  a 
dominion  over  the  ocean.  I  believe  I  shall  be  able  to  expos? 
the  falsity  of  every  one  of  these  principles. 

February  14,  1809. 


LETTER  V. 

a  What  arc  the  maritime  rights  of  belligerents ,  and  the  conse¬ 
quent  duties  of  neutrals  f 

I  PROCEED,  my  friends,  to  examine  the  strength  or 
iustice  of  the  reasons,  which  the  British  government  has  stated, 
in  its  defence  of  their  claim  to  seize  the  property  of  their  ene¬ 
mies,  found  on  board  neutral  ships.  The  hist  reason  is  ..... 

«  Because  numerous  authors  of  weight  and  celebrity,  who 
have  written  upon  the  laws  of  nations,  have  maintained  that 

belligerent  right.”  #  , 

From  the  arguments  stated  in  my  former  letters,  you  w  ill,  i 

?hink,  have  agreed  with  me,  that,  it  matters  not,  hoTv  mag\ 


21 


have  written,  or  what  writers  have  said,  unless  they  assumed 
as  the  basis  of  their  reasoning,  the  moral  laws  of  nature  and  the 
principles  of  universal  justice.  If  therefore,  every  writer  upon 
the  laws  ol  nations  had  advocated  the  right  of  belligerents  to 
seize  an  enemy’s  property  in  neutral  ships,  that  right  would  nei- 
ther  be  established  nor  justified. 

But,  what  is  the  fact,  as  to  the  works  on  the  laws  of  nations? 
31 r.  Jenkinson  and  his  copyists  quote  as  their  principal  authori¬ 
ties,  the  Consolato  del  Mare ,  Grctius ,  Heineccius ,  Binkershoecky 
Gentilis ,  Loccenius ,  Voetius ,  Zuar'ms ,  Zouch ,  Montesquieu ,  and 
Vattel, 

If  the  number  of  the  writers  could  determine  the  authority, 
I  question  whether  the  cause  of  neutrals  would  not  be  trium¬ 
phant  ;  on  their  side  and  opposed  to  the  above  are  these  writers, 
Hubner ,  Gallium ,  Cocceius ,  Puffendorff \  Totze ,  Wolfius , 
Steck,  Lampredi ,  Hennings ,  Busch ,  Martens ,  Schlegel ,  and 
Azuni ;  all  these,  advocate  the  neutral  rights,  or  question  the 
justice  of  its  infraction. 

So  much,  therefore,  for  the  number  of  the  writers  on  the 
laws  of  nations  ;  from  which  it  appears  that  on  this  ground  no 
claim  can  be  rested.  But  I  do  not  stop  here,  I  will  test  the 
authority  of  the  principal  writers,  quoted  by  the  advocates  o: 

British  usurpation. 

The  doctrine  of  Grotius ,  as  laid  down  in  his  book,  was  pal- 
nably  borrowed  or  transcribed  from  the  Consolato  del  Mare;  and 
_t  is  more  than  probable  that  the  majority  of  the  other  writers, 
quoted  on  the  same  side,  had  no  other  data,  than  the  work  of  Gro¬ 
tius.  What,  then  are  you  to  think  of  a  doctrine,  that  rests  its 
justice  and  claims,  upon  a  production,  like  that  of  the  Consolato 
del  Mare ,  which  was  a  compilation  of  the  ordinances  of  the  petty 
cities  of  Italy,  formed  in  the  middle  centuries  ?  What  claims 
can  such  a  doctrine  have,  when  its  advocates  go  back  to  the  age 
of  Vandalism  and  ignorance,  for  authority  to  support  it  ?  It 
has  less  claim  to  obedience  now  than  the  canon  law,  or  than  the 
bulls  of  the  Popes,  for  these  are  of  a  more  recent  date,  and 
were  passed  in  more  civilized  times. 

But,  further,  I  will  endeavor  to  shew,  that  the  principal  wri¬ 
ters  quoted  by  the  English  government,  Grotius ,  Vattel ,  Bin - 
kershoeck ,  have  supported  the  cause  of  neutrals. 

Grotius  copied  the  Consolato  del  Mare ,  in  1624  ;  but,  in  1629, 
lie  wrote  to  his  brother,  announcing  that  he  had  just  finished  a 
treatise  to  prove,  that  the  freedom  of  neutral  trade  ought  not 
to  be  impaired  in  consequence  of  the  existence  of  wars  between 
particular  states ;  his  authority,  therefore,  ought  not  to  be 
claimed  in  opposition  to  neutral  rights.  Vattel  has  these  em¬ 
phatic  sentiments.... 

u  Whatever  a  nation  does,  in  a  use  of  its  own  rights,  anti 
'olely  with  a  view  to  its  own  good,  'without  partiality ,  without 
a  design  to  f(i~c?r  one  power  to  the  prejudice  of  another ;  cannot. 


22 


in  general,  be  considered  as  contrary  to  its  neutrality,  and  be¬ 
comes  such,  only  upon  particular  occasions,  when  it  cannot  take 
place  without  injury  to  one  of  the  parties,  who  has  then  a  right 
to  oppose  it.” 

This  is  an  absolute  avowal  of  the  right  of  neutrals  to  cover 
and  convey  every  kind  of  property  but  contraband :  the  last 
member  of  the  sentence,  as  above  quoted,  appears  somewhat 
enigmatical,  but  the  following  words  shew  the  sense  of  the 
author:....44  For  instance,”  says  Vattel,  44  a  besieger  has  a  right 
to  prohibit  access  to  the  besieged.” 

Binkershoeck  declares,  that  a  neutral  has  a  right  to  all  trade, 
when  it  makes  no  distinction  between  the  states  at  war. 

The  authority  of  these  writers,  therefore,  cannot  sustain  the 
British  doctrine  ;  or,  if  in  other  parts  of  their  works,  they  are 
inconsistent  with  the  above  sentiments,  they  merit  no  considera¬ 
tion  as  authority. 

There  is  yet  another  point  of  view,  in  which  I  can  exhibit  to 
you  the  rotteness  of  the  first  foundation,  upon  which  the  Britisn 
writers  assert  their  claim.  As  it  is  an  undisputed  rule,  one  that 
I  presume  every  writer  quoted  by  the  British,  is  in  favor  of, 
that  neutral  territory  lawfully  protects,  not  only  an  enemy’s 
property,  but  secures  property  taken  from  one  belligerent  from 
re-capture  by  another. ...how  can  the  right  to  seize  an  enemy  s 
property  on  board  neutral  ships  be  defended  ?  That  the  ship  of 
a  nation  is  a  part  of  its  territory,  as  much  as  a  dwelling  house  on 
its  territory,  cannot  be  questioned  ;  because  the  sea  is  no  nation  s 
property,  but  a  possession  in  common  to  them  all :  and  in  our  own 
short  history  there  are  to  be  found  instances,  particulai  ly  that  of 
Jonathan  Robbins,  in  which  the  British  asserted  this  rule  and  our 
government  acquiesced.  1  he  inconsistency,  therefoie  of  the.  go¬ 
vernment,  and  its  writers,  who  can  in  one  case  assert  the  iigh 
of  the  flag  to  secure  to  the  ship  every  privilege  allowed  on  shore, 
and  in  another  case  deny  that  right;  such  inconsistency,  I  say, 
is  so  gross  that  we  cannot,  in  honor  or  justice,  pay  any  respect 
to  the  cause  attempted  to  be  thus  supported. ...it  cannot  be  a  good 

Whether,  therefore,  the  question  is  determinable  by  the 
number,  or  the  consistency,  of  the  writers  on  the  laws  of  na¬ 
tions,  I  presume  that  it  is  here  shewn,  that  the  doctrine  cannot 
be  sustained,  on  the  first  ground  taken  by  the  Bimsh  go\  em¬ 
inent.  .  r 

The  next  argument  is....44  Because  the  general  practice  ot 

nations,  as  recorded  in  history,  shews  that  it  was  at  ail  turns 
an  acknowleged  right  of  belligerents.” 

Having  stated,  what  was  the  practice,  previous  to  1780,  I  now 
proceed  to  that  memorable  era  in  maritime  histoiyvthe  alliance  of 
the  neutral  states  of  Europe  to  support  their  rights  by  force,  if  ne¬ 
cessary.  This  great  event,  so  propitious  to  ad  just  states,  and  so 
grateful  to  enlightened  minds,  to  the  honor  of  America,  origin- 


ated  in  the  suggestion  of  one  of  her  most  distinguished  sons', 
Franklin,  who  had  contributed  more  than  any  other  man  to  lay 
the  foundation,  of  the  freedom  of  his  country,  obtained  by  his 
character  and  influence  at  the  court  of  France,  not  only  the 
alliance  of  that  state,  but  its  agency  to  induce  the  northern 
powers  to  assert  the  independence  of  the  seas.  Vergennes, 
through  the  minister  of  France  in  Prussia,  first  secured  the 
countenance  of  Sweden  and  Denmark,  and  then  these  powers 
obtained  the  concurrence  of  Russia ;  and  Holland  soon  after 
joined  the  confederacy. 

This  alliance  was  necessary  to  the  peace,  commerce,  and  neu¬ 
tral  character  and  freedom  of  the  northern  powers,  as  well  as  to 
the  success  of  America  ;  for  England  had  announced  her  reso¬ 
lution  to  suffer  no  trade  with  rebels,  and  had  put  her  threats 
against  France  into  execution  by  the  seizure  of  Russian  and 
other  ships,  bound  to  French  ports.  The  northern  states,  there¬ 
fore,  made  known  to  the  belligerents,  in  February,  1780,  that 
they  had  determined  to  support,  by  armed  fleets  fitted  out  for 
the  purpose,  u  the  freedom  of  trade  and  navigation,' ”  and  in 
particular  these  principles,  founded  upon  the  universal  laws  of 
nations :.... 

1.  That  it  shall  be  lawful  for  any  ship  whatever,  to  sail  freely 
from  one  port  to  another,  or  along  the  coasts  of  the  powders  at 
war. 

2.  That  all  merchandize  and  effects,  belonging  to  the  subjects 
of  powers  at  war,  and  shipped  in  neutral  vessels,  shall  be  en¬ 
tirely  free ;  excepting  contraband  goods,  (cannon,  mortars, 
musquets,  pistols,  flints,  matches,  gunpowder,  sulphur,  salt¬ 
petre,  pikes,  swords,  saddles,  or  other  articles  positively  form¬ 
ing  munitions  or  implements  of  war.) 

3.  That,  to  ascertain  what  constitutes  the  blockade  of  any 
place  or  port,  it  is  to  be  understood  to  be  in  such  a  predicament, 
when  the  assailing  power  has  taken  such  a  station,  as  to  expose 
to  imminent  danger,  any  ship  or  ships,  that  should  attempt  to 
enter  or  depart. 

4*  That  no  neutral  ship  shall  be  stopped  without  a  material 
and  well  grounded  cause  ;  and  in  such  cases  justice  shall  be 
done  them,  without  loss  of  time  ;  and,  besides  indemnifying, 
each  and  every  time,  the  party  aggrieved  by  being  stopped 
without  sufficient  cause  ;  satisfaction  shall  also  be  given  to  the 
power,  whose  flag  may  be  thus  insulted. 

5.  That  all  decisions  incases  of  capture,  shall  be  determined 
by  the  principles  here  laid  down. 

Such  was  the  decision  of  the  memorable  league  of  1780, 
which  it  was  declared  should  form  the  ground-work  of  all  sub¬ 
sequent  treaties.  The  principles  having  been  made  known  to 
every  court,  they  were  formally  adopted  by  France ,  Spain , 
Austria,  Naples,  Prussia,  and  even  by  Portugal  the  ally  of 
England;  so  that,  including  the  original  contractors,  Pussia^ 


Denmark,  Sweden ,  and  Holland ;  all  the  states  of  Europe, 
combined  in  common  defence,  against  the  usurpations  ol  Eng¬ 
land,  whom  it  was  necessary  to  treat  as  a  common  highway-man, 
bv  proclaiming  a  law  of  nations  and  announcing  the  punishment 
due  to  the  disregard  of  all  law  and  justice. 

When  this  manifesto  was  received  in  England,  an  answer 
was  returned  ;  in  which,  without  acknowleging  the  principles  oi 
the  league,  it  was  promised  that  no  offence  should  thereafter  be 
committed. 

This  promise,  however  was  not  kept,  for  the  English  conti¬ 
nued  to  capture  neutral  ships.  Russia  then  threatened  open  a»  ai , 
the  vessels  were  released  in  consequence,  and  in  less  than  two 
years  (1782)  England  herself  acknowleged  the  justice  of  the 
above  principles,  in  a  more  formal  manner . 

Russia  having  offered  its  services  to  Holland^  to  act  as  medi¬ 
ator  between  that  state  and  England,  the  Dutch  answeied  that 
7 10  peace  could-  be  made  unless  England  would  consent  to  coup)  m 
in  the  treaty  the  rights  and  principles,  set  forth  in  the  declara¬ 
tion  of  the  armed  neutrality.  Mr.  C.  J.  Fox,  the  British  prime 
minister,  immediately  wrote  to  the  court  of  Russia:.... 

u  His  majesty  anticipated  the  councils  of  the  coui  t  of  Pc.eis- 
burg,  by  having  offered  the  Hollanders,  the  entire  liberty  of 
navigation,  according  to  the  treaty  of  16 74,  between  Gieat 
Britain  and  the  republic;  a  treaty,  by  which  the  principles  o 
the  armed  neutrality  are  established  in  their  widest  extent,  to  all 
the  contracting  parties.  His  majesty  therefore,  aceepts  as  the 
basis  of  a  separate  peace  with  Holland,  a  free •  navigation  accoi  cl¬ 
ing  to  the  principles  demanded  by  her  imperial  majesty,  jn  hei 
declaration  (of  armed  neutrality)  of  February  26,  1780/ 

Here  then  is  a  most  explicit  and  voluntary  acknowlegement, 
by  England  herself;  that  the  neutral  flag  secures  all  property, 
but  contraband  :....that  contraband  means  only  implements  ana 
munitions  used  directly  in  Avar :  that  neutrals  have  a  right  to  sai 
alonr  enemy’s  coasts,  and  from  port  to  port:  and  that  a  belli¬ 
gerent  has  no  right  to  stop  a  neutral,  but  upon  just  ground  ol 
suspicion :... .yet,  we  are  sometimes  told,  that  England  never 

has  sanctioned  these  important  principles. 

Upon  the  strength  of  these  notorious  and um\  eisaliv  inteiest* 
ing  transactions,  Avriters  date  the  commencement  of  the  modern 
laws  of  nations  from  the  year  1780,  in  which  they  took  place. 
Since  that  year,  twenty-eight  treaties  have  been  ratified,  con 
tabling  and  confirming  the  principles  of  the  armed  neutrality, 
and  to  three  of  these  England  Avas  a  party:  four  have  been  rati¬ 
fied  since  that  time,  which  arc  hostile  to,  or  silent  respecting 
those  principles ;  to  Iavo  of  these  also  England  was  a  party,  to 
one  Russia  Avas  a  party,  and  to  one  America  A\as  a  partv .  t  15 
due,  however,  to  these  principles  and  the  cause  of  ad  neutral 
states,  as  well  as  to  America  and  Russia,  to  say,  that  in  rati- 
lying  principles  adverse  to  those  of  the  armed  neutrality,  al 


25 

faction  only  triumphed  in  each  country :  the  principles  and  sen¬ 
timents  of  both  states  remained  unchanged,  as  the  subsequent 
policy  and  conduct  of  both  have  gloriously  established. 

If  it  were  true,  that  nations  had  sanctioned  this  assumption^ 
by  their  general  practice,  its  justice  or  force  could  not  be  esta-- 
blished,  if  the  only  just  authority,  that  of  universal  justice, 
did  not  sustain  it.  Precedent  or  indulgence,  among  ancient  or 
particular  states,  cannot  bind  succeeding  states,  equally  inde¬ 
pendent  and  more  enlightened.  What  crime  may  not  be  justi¬ 
fied,  by  a  recurrence  to  history,  if  the  rapacitv  and  commercial 
jealousy  of  England,  for  three  centuries  derive  an  authority 
from  the  bloody  record  of  their  consequences  ?  But  nations  are 
not  now  in  a  state  of  apathy  or  ignorance,  they  feel  and  know 
that,  the  greater  the  number  of  instances  which  history  fur¬ 
nishes,  of  belligerent  insolence  or  neutral  tameness,  it  is  so 
much  the  more  necessary  now  to  establish  the  freedom  of  the 
seas  ;  and  the  evidence  of  this,  is  discernible  in  the  present 
condition  of  t\  ngland,  outlawed  bij  all  civilized  states . 

But,  let  me  inquire,  what-is  this  general  practice  P  Treaties 
undoubtedly  afford  the  best,  the  least  suspicious  authority  ;  they 
are  in  this  instance  the  best  possible  history. 

As  I  have  had  occasion  to  say,  heretofore,  the  seas  of  Eu¬ 
rope  bore  a  greater  number  of  pirates  than  merchantmen,  even 
so  late  as  the  14th  century;  and  on  shore  the  number  of  bands 
of  robbers,  not  to  mention  the  individual  plunderers,  equalled 
that  of  the  pirates... .a  state  of  things  consequent  to  the  semi¬ 
barbarism  of  the  people,  and  the  crusades  which  threw  upon 
the  shores  of  Europe  disbanded  corps  of  soldiers  and  seamen, 
after  eight  or  nine  fruitless  attempts  to  extirpate  infidelity  by 
the  sword,  in  Egypt  and  Syria.  It  is  not  therefore  to  such 
times  as  these,  that  we  can  or  ought  at  this  day  to  resort,  for 
lhe  txue  principles  or  justice  or  sound  policy ;  England  alone 
resorts  to  that  polluted  source,  by  her  attachment  to  the  Como - 
lato  del  Mare .  If  in  those  dark  times,  it  was  the  general  prac¬ 
tice  to  do  as  Britain  yet  does,  that  fact  shews  the  propriety  of 
reformation:  but,  even  in  the  14th  and  early  in  the  15th  centu¬ 
ries,  there  are  instances  of  improvement,  as  appears  by  the 
treaty  of  1353,  between  England  herself  and  the  city  of  Lis¬ 
bon,  and  by  the  treaties  of  1406  and  1417,  between  France  and 
the  duke  of  Burgundy. 

The  generally  adopted  stipulations  of  the  early  treaties  were 
simply  these.. .^.that  the  contracting  parties  should  protect  each 
othei  against  tne  pirates,  and  that  in  the  event  of  a  war  between 
one  of  the  parties  and  a  third  power,  the  other,  or  neutral., 
psuty  should  not  be  partial,  or  be  the  friend  of  one  more  than 
of  tne  other  belligerent,  in  trade  or  otherwise. 

Witli  the  progress  of  commerce  and  civilization,  a  gradual 
but  steady  change  was  operating  in  favor  of  the  rights  of  neu- 
trals,  and  it  is  not  a  little  singular,  that  even  the  Turks,  so 


,arK-  a3  1604,  were  among  the  very  first  to  adopt  the  laws  oi 
nature  and  reason,  to  which,  although  often  sanctioned  in  her 

_  *  -  •  i*  1  _  _  - ^  A  Konrlnmnn*  tnPVP- 


nature  ana  reason,  to  wmtu,  ' — :  .  4 

treaties,  England  is  at  this  day  opposed.  Abandoning  there- 
fore,  former  practices,  every  state  m  Europe,  adopted  a  new 
policy  and  conduct,  in  particular  treaties,  in  the  17th  and  18th 
centuries ;  and  among  these  states  England  herself  took  the 
lead,  as  to  the  number  of  her  treaties,  on  the  subject  of  neutra 
l-isrhts.  So  far  from  the  present  doctrine  of  England  having  a 
sanction  in  the  generality  of  its  adoption,  the  treaties  prove  the 

From  1642  to  1780,  but  fourteen  treaties  were  ratified,  that 
were  hostile  to  the  right  of  neutrals  to  protect  enemy  s  property, 
not  contraband ;  and  this  number  is  stated  on  the .authority o 
an  advocate  for  the  British  doctrine :....but  from  1 642  to  1/ SO 
sixty-three  treaties  were  ratified  establishing  the  ngn :  o  the 
neutral  flag  to  cover  all  property  but  contraband.  From  160* 
to  1780,  sixty-four  treaties  guaranteed  the  neutral  rights;  to 
thirty- four  of  which  England  herself  was  a  party  ;  and  of  the 
whole  number,  fifty-nine  were  ratified  before  the ;  defence  of  the 
duke  of  Newcastle,  and  Mr.  C.  Jenkmson,  that  I  am  now 
•  • 

-n°With;"n  that  term,  from  1604  to  1780,  there  was  an  equal 
number  of  treaties,  at  least  which  contained  no  specific  regula¬ 
tor!  •  but  as  they  were  ratified  by  the  very  states  which  were 
parties  to  the  o'ther  treaties,  and  as  they  refer  to  the  genera 
practice  to  determine  questions  arising  out  of  war,  these  might 
be  Placed  in  support  of  neutral  rights;  putting  them,  however, 
aside  the  general  practice  in  civilized  states,  as  evinced  m  then- 
treaties  to5 the  year  1780,  confirms  the  right  of  the  neutral  to 
cover  enemy’s  property,  not  contraband,  and  does  not  sanction 
the  belligerent  usurpation,  as  alleged  by  Mr.  Jenkmson. 

If  any  further  proof  were  wanting,  besides  the  absolute  rati¬ 
fication  of  those  treaties,  guaranteeing  neutral  rights,  it  is  to  be 
found  in  the  circumstances  and  terms  of  the  treaty  of  L  trecht, 
between  England  and  France,  in  1713.  The  French  had  some 
success  at  se  t  in  the  war  preceding  that  peace,  but  the  English 
-nd  the  allies,  the  Germans  and  Dutch,  under  the  duke  of 
Marlborough  and  prince  Eugene,  had  such  -sampled  goo 
frtvtnne  on  the  continent,  that  Lewis  XIV.  was  glad  to  si6n 
disgraceful  treaty.  Yet,  in  this  period  of  triumph,  and  not- 

Ht, 

of  the  neutral  Hag:.. .. 


.  „  Tt  shan  be  lawful  for  the  subjects  of  the  queen  (Anne 

of  Grca(  Britain,  Vimd  Ihcnost  Christian^  (J^XIV.)  to with  the 

the^cargoesffr^'any  part  to  the'rfaces  of  those  who  are  now,  or  shall  h 


2  7 

'hereafter  at  enmity  with  the  queen  of  Great  Britain  or  tl>e  most  Christian  king  . 
it  shall,  likewise,  be  lawful  for  the  subjects  aforesaid,  to  trade  with  the  same 
liberty  and  security,  in  merchandize  as  aforesaid,  to  or  from  the  ports  of  those 
who  are  enemies  of  either  party;  and  not  only  from  the  ports  of  enemies  to 
neutral  ports,  but  from  one  place  belonging  to  an  enemy  to  another,  whether 
they  be  under  the  jurisdiction  of  one  prince  or  of  several.  And  it  is  now  sti¬ 
pulated,  that  free  ships  shall  give  freedom  to  goods ,  and  that  every  thing  shall  he 
free  and  exempt,  which  shall  be  found  on  board  the  ships  belonging  to  either 
party’s  subjects,  although  the  whole  lading,  or  any  part  thereof,  should  appertain 
to  the  enemies  of  either  of  their  majesties,  contraband  (including  warlike  instru¬ 
ments  ancj  munitions  only)  excepted.  The  subjects  of  the  enemies  cf  either, 
shall  also  be  free,  excepting  soldiers  in  actual  service.” 

From  this  view  of  the  conventional,  or  treaty -hi  story  of  modern 
Europe,  I  am  emboldened  to  say,  that  the  second  argument,  in 
support  of  the  claim  to  seize  enemy  property  in  neutral  ships, 
is  totally  defective ;  and  that,  on  the  contrary,  the  practice  cf 
civilized  states  confirms  the  right,  which  neutrals  possess  by 
the  laws  of  nature,  to  protect  all  property  but  contraband. ...to 
trade  in  whatever  way  they  may  think  proper,  consistently  with 
that  impartiality,  which  justice  and  reason  inculcate  and  direct* 

February  16,  1809. 


LETTER  VI. 


■u  What  are  the  maritime  rights  of  belligerents ,  and  the  conse¬ 
quent  duties  of  neutrals 

HAVING  shewn  that  a  neutral  has  a  right  to  carry  and 
protect  all  belligerent  property,  not  contraband,  by  the  laws  oi 
nature,  the  authority  of  writers  on  public  law,  and  by  the  gene¬ 
ral  practice  of  nations  :  I  might  here  rest  the  question  for  your 
decision.  There  is  another  pretext,  however,  for  the  bellige¬ 
rent  usurpation,  which  although  in  some  measure  anticipated 
and  answered  in  my  fourth  letter,  it  maybe  useful  to  notice  here. 
It  is  said  a  neutral  has  no  right  to  convey  enemy’s  property: 

u  Because  such  carriage  increases  the  revenue  of  the  state  at 
war,  and  indirectly  the  number  of  its  seamen,  thereby  enabling 
it  to  prolong  hostilities:  a  state  of  things  calculated  to  induce 
neutrals  to  excite  contentions  amongst  states,  in  the  expectation 
of  profit  to  themselves.” 

This  pretext  is  said  to  be  founded  in  the  reason  of  the  case, 
it  is  such  an  argument,  however,  as  I  think,  can  be  refuted  in 
this  plain  and  neutral  language. 

In  barbarous  ages,  belligerents  undertook  to  reduce  their 
enemies  by  poison,  famine,  and  by  cutting  off  all  intercourse 
with  them :  neutrality  was  not  only  unknown  as  a.  condition, 


28 


but  as  a  term ;  weak  states  being  compelled  to  take  a  part  in 
quarrels  among  powerful  neighbors,  in  which  they  had  no  inte» 
rest,  and  which  usually  terminated  in  their  own  ruin,  whoever 
became  the  conqueror. 

But  since  the  civilization  and  distribution  of  mankind,  into 
separate  and  distinct  states,  the  practice  and  example  of  barba¬ 
rians  have  been  generally  succeeded  by  just  conceptions  of  the 
rights  and  duties  of  states  :  the  laws  of  nature  offering  an  uner¬ 
ring  guide,  nations  acknowleged,  that  in  preserving  their  own 
happiness,  they  had  no  right  to  abridge  the  happiness  of  others. 
Thus,  when  wars  arose,  states  remaining  in  peace,  lost  none  of 
their  rights,  they  were  simply  bound  to  observe  an  honest  im* 
partiality;  and  as  even  Vattel  acknowleges,  if  a  state  traded  in 
arms,  during  a  peace,  it  had  a  right  by  nature  to  pursue  that 
trade  in  wTar. 

Particular  belligerents,  however,  intent  only  upon  injuring 
their  enemies,  pretended  that  in  wars  there  arose  a  new  law, 
that  of  necessity ,  superior  even  to  the  laws  of  general  justice. 

You  must  not  furnish  arms,”  said  the  belligerent,  “  because 
self-preservation  gives  me  the  right  to  prevent  my  enemy  from 
acquiring  weapons  and  implements  for  injuring  me.”  In  trea¬ 
ties,  this  law  of  necessity  was  adopted  and  respected.  This 
abridgment  of  perfect  rights,  at  the  instance  of  belligerents, 
induced  them  to  demand  another  concession,  thatneutrals  should 
not  enter  ports  blockaded,  and  this  also  was  admitted. 

That  these  were  concessions  on  the  part  of  neutrals,  and  not 
actually  founded  on  the  rights,  alleged  to  accompany  warfare, 
is  manifest  from  the  treaties  of  ail  modern  states  ;  the  exception 
in  two  instances,  and  two  only,  prove  that  all  other  rights  were 
retained  by  neutrals. 

At  this  point,  indeed,  concession  justly  ceased,  for  if  it  had 
not,  where  would  be,  and  who  could  fix  the  limits  of  bellige¬ 
rent  claims  r  If  a  state  at  war  asserts  a  right  to  stop  one  species 
of  commerce,  or  one  particular  trade,  because  the  revenue  of 
the  enemy  is  thereby  encreased ;  and  if  this  usurpation  is  allow¬ 
ed  ;  the  necessary  consequence,  the  very  next  pretext,  must  be, 
that  all  intercourse,  whatever  may  be  interrupted,  for  there  is 
no  trade  that  does  not  aid  the  state  carrying  it  on. 

This  consequence,  unfortunately,  is  not  imaginary :  the  effect 
has  succeeded  the  cause,  particularly  in  the  present  war.  But, 
although,  the  laws  of  nature  and  treaties  have  been  violated,  in 
almost  every  war,  the  rights  and  the  nature  of  neutrality  remain, 
the  same,  they  are  as  fixed  and  as  just  as  ever,  andean  be  aban¬ 
doned  only  with  disgrace. 

The  true,  and  the  only  justification  for  belligerent  interference 
in  neutral  concerns,  is  when  the  neutral  manifestly  favors  by 
treaty  or  otherwise,  one  of  the  states  at  war,  more  than  the 
ether;  for  a  favor  granted  during  the  war  to  one  belligerent, 
does  an  injury  to  the  other,  and  justly  exposes  the  neutral  to 


29 

the  treatment  of  an  actual  ally  in  the  war.  But  when  imparti¬ 
ality  ceases  to  be  the  safeguard  of  neutrals,  there  is  no  limit  to 
the  insolence  of  belligerents,  or  the  injury  to  the  neutral 

“  A  neutral,”  says  Vattel,  the  authority  so  much  relied  on 
by  England,  “  has  a  right  to  pursue  any  trade  but  contraband, 
when  it  carries  it  on  for  its  own  benefit,  and  without  a  design  to 
favor  one  belligerent  to  the  injury  of  another.” 

“  A  belligerent,”  says  Barbeyrac,  “  has  a  right  to  require 
neutrals  to  maintain  a  strict  neutrality,  and  not  to  serve  his  enc- 
mv  more  than  himself.” 

On  this  point,  indeed,  all  writers  on  public  law  seem  to  have 
agreed  ;  the  question  then  is  capable  of  no  perversion,  the  right 
of  a  neutral  may  at  all  times  be  decided  by  its  conduct,  and 
that  conduct  all  the  world  must  be  acquainted  with.  If  Ame¬ 
rica,  for  instance,  engaged  in  a  carrying  trade  for  England, 
France  could  have  no  right  to  forbid  it,  unless  the  like  advan¬ 
tages  were  denied  to  the  latter. 

Other  points  may  be  answered  by  the  neutral,  in  this  way  : 

“  In  wars,  our  neutral  rights  are  voluntarily,  and  perhaps  wise¬ 
ly,  abridged  ;  our  interests  are  necessarily  thwarted.  By  the  laws 
of  nature  we  may  pursue  anv  trade,  as  our  relinquishment  of  a 
part  by  treaty,  sufficiently  proves  ;  we  may  do  whatever  is  bene¬ 
ficial  to  ourselves  and  does  not  injure  others.  If  we  submit  to 
all  the  restraints  and  vexations  of  war.. ..the  interruption  of  sup¬ 
plies  ;  the  loss  of  good  customers  ;  detention  and  examination 
at  sea  by  every  petty  cruizer ;  and  the  losses  by  detention  in 
belligerent  ports  by  embargo,  &c.  If  we  submit  to  all  these, 
because  particular  states,  with  whom  we  are  in  amity,  choose 
to  engage  in  hostilities  with  each  other ;.... surely  it  is  unjust  to 
deprive  us  of  anv  advantages  that  the  war  may  create  in  our 
ia\  or.. ..advantages  that  result  from  your  voluntary  engagement 
in  hostilities  ;  such,  too,  as  while  they  promote  our  interest, 
materially  serve  your  own.  We  have  a  right  to  carry  for  either 
or  both  oi  you,  such  innocent  goods,  as  you  may  wish  us  to  carry, 
irom  your  own  inability  to  do  so ;  and  our  right  cannot  be  dis¬ 
puted  but  when  w^e  are  manifestly  partial,  a  conduct  that  our 
interest  compels  us  to  avoid.  Nor  is  it  any  justification  for  in¬ 
fringing  our  rights,  that  one  beJjigerent  derives  more  revenue 
than  the  other,  from  our  trade,  since  it  is  not  the  effect  of  our 
impartiality,  but  of  the  circumstances  of  the  war. 

As  to  the  pretext,  that  a  carrying  trade  may  create  among 
neutrals  the  desire  for  wars,  and  even  induce  them  to  excite 
contention  ;  that  motive  can  have  little  or  no  influence  in  any 
ctate  that  has  an  import  and  export  trade  of  its  own.  Holland 
might  find  an  interest  in  its  own  neutrality  and  wars  amongst 
neighboring  nations,  but  its  capability  to  produce  them  is  so 
trifling  as  to  give  no  reason  to  expect  any  effect,  if  it  were  dis¬ 
posed  to  pursue  so  unjust  and  unusual  policy.  But  this  pretext, 
it  is  at  all  times  in  the  power  of  the  belligerents  to  remove. 


30 


The  influence  of  neutrals  must  promote  rather  than  abridge, • 
the  interests  of  states,  and  the  cause  of  humanity. ...for  when 
the  prospects  of  maritime  plunder  are  frustrated  and  obscured 
by  an  acknowlegement  of  our  neutral  rights,  the  principal 
caus^  of  maritime  wars  will  be  removed.” 

This,  I  trust,  is  the  language  of  reason  and  justice,  and  I 
think  refutes  the  pretext,  said  to  be  founded  in  the  nature  of  the 

From  what  I  have  said  in  this  and  the  preceding  letters, 
these  conclusions  are,  in  my  opinion,  deducible  ;  from  the  laws 
of  nature,  the  authority  of  writers  on  public  law,  and  the  prac¬ 
tice  of  states. 

1.  That,  as  the  ocean  is  as  free,  and  common,  to  all  men,  .as 
the  air,  no  power  has  a  right  to  exclusive  privileges  in  using  it: 

2.  That,  as  all  writers  agree  that .  all  property  whatever  is 
sacred  and  secure  when  in  the  dominions  of  a  neutral  state  , 
and,  as  they  are  equally  explicit  in  declaring  the  ship  of  a  state 
a  part  of  its  dominion  all  the  rights  of  the  state  are  possessed  by 
the  ship,  in  whatever  sea  or  port  it  may  be....subject  to  those 
restrictions  only  which  are  voluntarily  imposed  by  treaty,  those 
pf  contraband  trade,  and  intercourse  with  ports  blockaded.^ 

In  my  4th  letter  I  briefly  noticed  the  treaty  history  of  Eng¬ 
land  and  her  discussions  with  Prussia  and  Russia  ;  it  must  be 
useful,  however,  to  state  more  particularly,  the  instances  and 
facts,  which  prove  that  her  opposition  to  neutral  rights  is  found¬ 
ed  upon  her  own  interested  views  and  policy,  and  not  upon  the 

laws  or  customs  of  nations.  . 

From  1642  to  1753,  when  the  first  formal  discussion  oi  neu¬ 
tral  rights  took  place  between  England  and  Prussia,  that  is 
within  little  more  than  a  century,  England  guaranteed  anc. 
.confirmed  in  thirty-one  treaties ,  the  right  of  the  neutral  to  pro¬ 
ject  all  enemy  property  but  contraband.  r _  . .  . 

The  controversy  with  Prussia,  is  particularly  remarkable.  - 
The  English  had  seized,  in  1747,  several  Prussian  and  Han¬ 
seatic  vessels,  laden  with  belligerent  goods:  Frederic  II.  de¬ 
manded  restitution,  in  a  formal  memorial,  wherein  that  great 
man  defended  the  rights  of  the  neutral  flag:  England  returned, 
in  1753,  a  formal  answer,  refusing  restitution,  and  asserting 
the  belligerent  claim  to  take  the  property  of  enemies,  found  m 
neutral  ships :  Frederic,  on  this  refusal,  sequestrated  certain 
mortgage  claims  England  had  upon  Silesia.  This  was  a  con¬ 
test,  of  the  utmost  importance  to  neutrals,  and  it  terminated  m 
a  glorious  triumph  ;  the  British  being  compelled  to  pay,  as  they 


*  «  Notwithstanding  all  the  discussions  by  the  duke  of  Newcastle  and  &  i 
D.  Ryder,  &c.  the  king  of  Prussia  having  threatened  to  invade  Hanovei,  t  e 
whole  matter  was  put  to  sleep  by  our  government  privately  restoring  the  value 
of  the  ships  and  cargoes,  protected  as  it  was  asserted  b;y  tie  n  •  “s’ 

although  the  property  of  enemies  ot  England.’  Preface  to  so  y.  -  ar  .o 


■  Admiralty  Cases. 


VqI.  I,  page  14. 


Si' 

did  on  the  16th  January,  1 756,  for  the  property  seized  in  the 
Prussian  ships. 

In  1780,^  another,  and  a  still  more  important  contest  took 
place,  the  consequences  of  which  are  equally  propitious  to  neu¬ 
trals.  All  the  states  of  Europe,  leagued  to  defend  their  rights 
against  England;  and  in  1782,  the  ministry  of  that  country 
formally  accepted,  as  the  basis  of  their  treaty  with  Holland,  the 
principles  of  the  armed  neutrality. 

To  enable  you,  further  to  answer  the  question  asked,  I  sub¬ 
join  a  list  of  the  principal  treaties,  ratified  during  the  last  two 
centuries,  by  the  states  of  Europe.  Although,  in  this  enume¬ 
ration,  England  takes  the  first  place,  as  to  the  number  of  the 
instances  in  which  neutral  rights  were  acknowleged  ;  and,  not* 
withstanding  the  above  mentioned  authoritative  acts,  you  will 
find,  that  it  has  been  the  rule  and  policy  of  that  country,  to 
observe  no  laws  or  treaties,  longer  than  her  interests  required. 
Her  power  was  acquired  by  contempt  for  all  such  national  and 
moral  restraints  and  obligations,  and  can  be  retained  by  no  other 
means :  the  distresses  of  other  states,  wars,  and  intestine  com» 
motions,  are  the  only  pillars  of  her  power,  and  the  only  gua¬ 
rantees  of  her  safety. 

February  18,  1809. 

TREATIES, 

Either  directly  guaranteeing1  the  neutral  right,  to  protect  all  belligerent  proper¬ 
ty  but  contraband,  or  confirming  those  by  which  that  principle  had  been  esta¬ 
blished. 

prior  to  1780. 

Between  England  and  France,  seven  treaties,  in  the  years  1655,  1667,  1670,  1677, 
1713,  1717,  1748. 

England  and  Holland,  eleven  treaties,  in  1667,  1668,  1674,  1678,1685^ 
1688,  1709,  1713,  1717,  1726,  1748. 

England  and  Spain,  nine  treaties,  in  1667,  1670,  1715,  1715.  1721. 

i.729,  1739,  1750,  1763. 

England  and  Russia,  one  in  1734. 

England  and  Sweden,  one  in  1656. 

England  and  Denmark,  one  in  1670. 

England  and  Portugal,  two,  in  1642,  1654. 

France  and  Turkey,  four,  in  1604,  1689,  1719,  1764. 

France  and  Hanse-Towns,  two,  in  1655,  1716. 

France  and  Holland,  six,  in  1646,  1662,  1678,  1697,  1713,  17J3 9. 
France  and  Spain,  one  in  1659. 

France  and  Sweden,  two,  in  1666,  1672. 

France  and  Denmark,  two,  in  1662,  1742. 

Holland  and  Sweden,  three,  in  1667,  1675,  1679. 

*  “  To  ihc  resentment  of  the  empress  of  Russia,  the  British  government 
thought  proper  to  submit,  and  a  quantity  of  sail  cloth,  sufficient  to  tit  out  the 
whole  Spanish  tieet  from  Ferrol  to  Cadiz,  was  restored  upon  renewal  of  the 
•Iccrec  of  condemnation  in  consequence  of  an  appeal,  and  the  captor  absolutely 

(  ondemned  in  cost  ■  and  damages.”  .Preface  to  Marriott's  Ca-'cs.  Vol.  I,  page  1 5. 


Holland  and  Denmark,  one  in  1701. 

Holland  and  Spain,  one  in  1648. 

Holland  and  Portugal,  one  in  1661. 

Holland  and  Naples,  one  in  1752. 

Holland  and  Turkey,  one  in  1612. 

Denmark  and  Genoa,  two,  in  1675,  1756. 
Denmark  and  Spain,  one  in  1742. 

Denmark  and  Naples,  one  in  1748. 

Germany  and  Spain,  one  in  1725. 

United  States  of  America  and  France,  1778. 


SUBSEQUENT  TO  1780. 

Treaty  of  armed  neutrality,  signed  and  agreed  to  by  Russia,  Prussia,  Swe¬ 
den,  Denmark,  Holland,  Austria,  Naples,  Spain,  and  Portugal,  in  1780-1-2. 

U.  States  and  Holland,  in  1782. 

Sweden, 

Prussia, 

France, 

Morocco, 

Spain, 

Algiers, 

Tripoli, 

Tunis, 

Russia  and  Turkey, 

Austria, 

Portugal, 

Naples, 

England, 

France, 

France  and  Holland, 

England, 

Turkey, 

Hamburg, 

Holland  and  England, 

Turkey, 

Spain  and  England, 

Turkey, 

Tripoli, 

Algiers, 

Austria  and  Morocco, 

Denmark  and  Genoa, 


1783. 

1785. 

1786.  and  1800. 

1787. 

1795. 

1795. 

1797. 

1799. 

1783. 

1785. 

1787. 

1787. 

1793. 

1797. 

1785. 

1783,  178*6. 
1790. 

1789. 

1784. 

1798. 

1783. 

1782. 

1784. 

1786. 

1783. 

1789. 


Denmark  and  Genoa?  x/oy#  ,  r 

Second  armed  neutrality,  in  1800-1,  between  Russia,  Sweden,  and  Denmark 


LETTER  VII. 

flc  What  are  the  maritime  rights  of  belligerents ,  and  thd  conse¬ 
quent  duties  of  neutrals 

HAVING  considered  the  three  first  points  of  inquiry, 
arising  out  of  the  above  question,  I  will  now  endeavor  to  answer 
the  fourth,  which,  for  the  purpose  of  elucidation,  may  be  thus 
stated.. Are  neutrals  bound  to  submit  to  be  searched  by  bel¬ 
ligerent  cruizers 


Besides  the  general  importance  of  this  subject,  it  has  parti- 
cuiar  claims  to  >our  attention,  from  the  circumstances,  that  a 
resolution  is  now  before  congress,  for  instructing  the  command¬ 
ers  of  our  merchantmen  to  resist  a  search,  and  that  several 
newspapers  are  endeavoring  to  persuade  the  public,  that  to  resist 
is  unlawful.  I  shall  endeavor  to  test  the  pretended  right  of 
search,  by  the  laws  of  nature,  the  writers  on  public  law,  and 
the  practice  of  nations. 

One  of  the  first  and  strongest  injunctions,  that  men  and  states 
receive  from  nature,  is  to  promote  their  own  happiness  and  im¬ 
provement;  and  with  these  injunctions  are  obviously  conveyed 
all  the  rights  necessary  for  their  fulfilment.  Commerce,  or  in¬ 
tercourse,  being  the  most  certain  means  for  promoting  the  mu¬ 
tual  civilization  and  wellare  of  states,  no  nation  has  any  right 
whatever,  by  the  laws  of  nature,  to  interrupt  it  j  and  as  states 
have  not  only  a  right,  but  are  bound,  to  preserve  their  happi¬ 
ness,  an  interruption  of  their  just  pursuits  justifies  resistance. 

In  land  wars,  it  never  has  been  attempted,  I  believe,  to  in¬ 
terrupt  the  peaceful  intercourse  of  citizens  even  of  states  at  war  ; 
much  less,  to  prevent  a  commerce  between  the  people  of  a  na¬ 
tion  at  war  and  their  friendly  neighbors :  on  the  contrary,  wise 
statesmen  have  made  every  effort  to  confine  their  wars  to  the 
governments  themselves,  or  to  their  armies,  and  not  to  extend 
their  distresses  to  every  class  of  the  people,  or  to  cut  off  all  com  ¬ 
munication.  It  is  certain,  that  on  land,  resistance  would  follow 
any  attempt  to  interrupt  a  neutral  trade  with  the  people  of  a 

state  at  war . Such  being  the  case,  it  must  be  shewn  that  the 

laws  of  nature  make  any  distinction  between  the  rights  of  an 
intercourse  by  land  and  that  by  sea,  before  it  can  be  allowed 
that  belligerents  have  a  right  to  exercise  upon  the  latter  vex¬ 
ations  and  restraints,  which,  if  attempted  on  land,  would  justify 
war.  The  flag  of  a  ship  entitling  it,  upon  a  free  sea,  to  all  the 
rights  and  honors  of  the  state  it  belongs  to,  an  attempt  to  inter¬ 
rupt  its  course  cannot  be  justified  by  the  laws  of  nature.^ 

When  states  engage  in  war,  they  have  a.  right  to  harrass  their 
enemies,  but  they  are  bound  to  act  towards  neutrals  as  if  no  war 
existed.  So  positive  are  the  rights  of  neutrals,  indeed, that  they 
may  refuse  and  resist  a  belligerent  attempt  to  seize  even  contra¬ 
band.  The  utmost  that  the  law  of  necessity  (of  which  so  much 
is  said  and  which  has  been  so  much  abused)  allows  to  a  bellige¬ 
rent,  is  to  delay  or  interrupt  a  supply  of  contraband,  it  can  give 
no  right  to  rob  a  neutral ;  and  the  contraband,  if  stopped,  should 
be  paid  for.  Necessity  can  never  exist  contrary  to  justice. 

If  the  positions  here  stated,  are  as  correct  as  I  believe  them 
to  be,  the  laws  of  nature,  instead  of  justifying,  absolutely  for- 


Jurisdiction,  exercised  in  ships,  proves  it 
birth  of  a  child  on  board  the  ship  of  a  nation,  is 
tory  ot  the  nation  to  which  the  ship  belong. 


a  part  of  the  territory, 
hold  to  bo  a  birth  in  tin 


Tbo 

tern- 


bid,  any  interruption  of  neutral  commerce.  The  opinions  o, 
public  writers  are  next  to  be  considered.  . 

A  As  stated  in  a  former  letter,  those  opinions  on  the  laws  ot  na 
-ions  have  no  authority  unless  they  are  founded  upon  the  law* 
of  nature  and  universal  justice ;  if,  therefore,  what  is  called  e 
right  of  search  were  advocated  by  every  writer,  its  justice  woulc 
not  on  that  account  be  established:  but  there  is  no  instance,  t 
ran  find,  in  which  it  has  been  attempted  to  establish  a  right  ot 
search  upon  the  authority  of  the  laws  of  nature :  all  the  writers,  who 
discuss  the  subject,  treat  it  as  an  effect  or  necessary  consequence  oi 

the  privilege  granted  by  neutral  states  to  belligerents,  to  pi  eve 
trade  in  contraband.  A  southern  newspaper  noticing  the 
resolution  before  congress,  says,  that  no  champion  of  neutral 
rights  has  denied  the  right  of  search;  but  this  is  manifestly  a 
perversion  of  argument:  every  neutral  advocate  admits  an  in- 
uuirv  according  to  conventional  law,  but  not  one  public  wntei 
of  them  all  concedes  what  is  properly  meant,  at  this  day,  by  the 

The  same  print  says,  that,  as  the  Consolato  del  Mat  e  laid 
down,  as  the  right  of  a  belligerent  to  seize  the  property  of  an 
enemy  in  a  neutral  ship,  it  implied  a  right  to  search:  but  even 
If  this  inference  were  fairly  deducible,  which  ,s  not  the  case  that 
book  must  first  be  shewn  to  be  a  proper  authority,  before  obedi¬ 
ence  can  be  claimed  for  it.  Every  modern  nation,  but  England 
has  exploded  it,  and  even  the  English  adhere  to  Us  authority  only 
When  it  suits  their  purposes  :....for  instance,  the  Consolato  de. 
Mare  declares,  that  when  a  belligerent  seizes  the  pi operty  of  d. 
enemy  in  a  neutral,  the  neutral  must  be  paid  the  freight  of  t  . 
property;  but  the  British  refuse  to  pay  the  freight,  and  even 
condemn  the  neutral  vessel....agam,  the  Consolato  del  Man  de 
dares  that  the  property  of  a  neutral,  found  in  an  enemy  ship, 
shall  be  free,  but  the  British  from  the  time  of  Cromwell  to  the. 
present,  have  violated  this  rule  as  well  in  them  P^llJFe  |ri 
their  treaties,  a  particular  instance  of  which  is  to  be  found  iu 
the  treaty  of  Utrecht.  It  is  evident,  therefore,  that  this  boo* 

is  no  guide  or  authority  whatever.  # 

Binkerskoeck  and  Vat  tel  are  also  mentioned  in  the  paper  a  lud- 
cd  to,  as  authorities  to  prove,  that  to  resist  a  search  is  unlawful  ; 
but  the  opinions  of  these  writers  rest  solely  upon  their  jus  ness 
and  therefore  if  they  advocate  an  iniquitous  practice,  their  au 
thority  Passes  for  no  more  than  the  like  groundless  arguments  m 
mr  y  newspapers.  It  is  remarkable,  however,  that  neither  of 
'these  writer's  pretends  to  justify  the  right  of  search  as 
ed  by  England,  and  understood  accordingly ;  Btnkershoecxe :x 
pressly  limits  the  belligerent  rights,  to  -  eXam;naUon  of  he 
ship’s  passports  ;  Vattel  declares,  that  «  full  credit  is  to  be  given 
to  the  passports  and  bills  of  lading  produced  by  the  neutral  cap¬ 
tain,  unless  fraud  appear  therein,  or  that  good  cause  exists  t 
,lr_pCCt  their  validity.”  Martens  thus  defines  the  duty  of  the 


neutral,  cc  the  ship  of  a  neutral  nation,  should  submit  to  the 
examination  fixed  by  treaty.”  Every  other  writer,  that  I  have 
had  an  opportunity  of  consulting,  places  the  question  on  the  true 
foundation,  such  as  I  shall  presently  state,  and  attaches  to  a 
violation  of  the  neutral  right,  all  the  losses  that  follow. 

As  the  laws  of  nature  give  no  right  whatever  to  a  nation  at 
war,  to  interfere  with  the  commerce  of  neutrals,  and  as  even 
interference  justifies  resistance  ;  what  is  termed  aright  of  search, 
can  have  no  other  foundation  but  the  consent  of  the  neutrals 
themselves.  There  is  no  doubt,  but,  in  the  middle  ages,  bel¬ 
ligerents  searched  vessels,  in  the  full  sense  of  the  term  ;  but 
this  was  an  act  of  force  ;  it  was  one  of  those  traits  of  barbarism, 
which  honest  and  enlightened  men  must  look  back  upon  with  hor¬ 
ror:  in  these  times  there  were  no  rights,  no  laws,  power  stood 
in  their  place  ;  the  seas  were  infested  with  pirates;  and  there 
was  no  safety  but  in  a  warlike  superiority  ;  but  nations  cannot 
consent  to  have  these  precedents  now  held  up  to  justify  our  imi¬ 
tation. 

The  necessary  consequence  of  this  unlicenced  conduct,  was 
to  induce  succeeding  nations  to  be  more  jealous  of  their  privi¬ 
leges  than  they  would  otherwise  have  been.  From  humanity, 
neutrals  consented,  that  belligerents  might  prohibit,  the  intro  ¬ 
duction  of  arms  and  military  stores  to  their  enemies,  and  the 
entrance  of  neutrals  into  blockaded  ports  ;  but  when  they  con¬ 
ceded  these  privileges,  the  right  to  search  for  contraband  was 
not  granted,  it  was,  on  the  contrary,  expressly  withheld.  It  is 
not  wonderful,  that  those  who  have  an  interest  in  the  subservi¬ 
ency  of  neutrals,  should  pretend  that  the  right  to  search  was 
implied  in  the  right  to  seize  contraband ;  but  neutrals  should 
not  forget,  that  the  right  to  seize  contraband,  does  not  properly 
or  inherently  belong  to  the  belligerent,  it  is  a  voluntary  conces¬ 
sion  of  the  neutral.  As  therefore,  it  was  originally  a  conces¬ 
sion,  it  is  not  to  be  supposed,  that  nations  would  have  accom¬ 
panied  it  with  the  abandonment  of  another  right,  the  exercise 
of  which,  would  be  an  indignity  to  an  independent  state,  and 
an  outiage  upon  its  citizens.  No  neutral  nation  ever  guaran¬ 
teed  a  right  to  search,  by  treaty. ...the  usurpation  was  often  sub- 
mitted  to  by  \yeak  states,  but  never  acknowleged  as  a  right ;  and 
England  in  the  days  ol  her  greatest  pride,  under  the  administra¬ 
tion  of  Chatham,  declared  that  the  attempt  to  search  a  British 
ship,  was  a  just  cause  of  war.* 

The  earliest  evidence  of  this,  that  I  can  find,  is  in  the  history  ol 
die  reign  of  queen  Elizabeth.  Under  that  princess,  the  maritime 
power  of  England  was  predominant  and  irresistible,  and  the 
disposition  of  her  government  was  such,  as  to  give  it  ample  em¬ 
ployment:  her  conduct,  therefore,  deserves  the  more  particular 
notice.  During  her  war  with  Spain,  in  1589,  the  French  car- 

See  lord  Chatham’s  declaration  in  the  Appendix. 


ried  on  an  extensive  trade  with  that  country ;  Elizabeth,  sus¬ 
pecting  it  to  be  in  a  great  measure  of  a  contraband  nature,  or¬ 
dered  her  minister,  to  require  of  Henry  III.  of  France,  to  per¬ 
mit  the  merchant  vessels  of  his  subjects  to  be  searched  by  her 
cruizers ;  the  answer  is  as  remarkable  as  the  application. ...u  I 
cannot  consent,”  said  Henry,  “  because  it  would  introduce  prac¬ 
tices  injurious  to  trade,  and  afford  belligerents  a  pretext  to  plun¬ 
der  neutrals.” 

As  remarkable  an  instance  occurred,  during  the  protectorate 
of  Cromwell.  This  man  placed  the  naval  power  of  his  country 
upon  a  stronger  basis  than  it  had  before  been,  and  as  well  as  Eli¬ 
zabeth,  employed  it  in  everyway  calculated  to  suppress  a  rivalry 
on  the  part  of  any  other  state  ;  he  held  the  trident  in  his  hands, 
yet  he  asked  in  vain  for  permission  by  treaty ,  to  search  the 
Dutch  merchantmen.  His  object  was  well  understood  by  the 
Dutch  ;  they  refused  to  sanction  the  privilege  by  treaty, but  ap¬ 
pear  to  have  tacitly  submitted,  although  the  submission  was 
protested  against  by  their  admirals. ...the  remark  made  by  the 
brave  admiral  de  Kuyter,  when  he  heard  that  his  government 
was  averse  to  warlike  opposition  to  search,  was  worthy  of  his 
character.... “  If  we  submit,”  said  he,  “  it  will  doubtless  expose  us 
to  insults,  when  we  least  expect  them  ;  these  will  be  offered  de¬ 
signedly  by  the  English. ...they  will  search  our  vessels  at  their 
pleasure  ;  take  possession  of  them  on  the  slightest  pretensions, 
and  afterwards  treat  us  as  infamous  poltroons.”  The  event 
iustified  the  prediction;  the  British  have  treated  and  always 
will  treat  as  infamous  poltroons,  not  only  the  Dutch,  but  every 
other  people  so  spiritless  as  not  to  resist  a  violation  of  their 
rights.* 

The  French  and  Dutch  were  not  alone,  in  refusing  to  ratify 
in  their  treaties  a  manifest  usurpation  ;  Cromwell,  in  particular, 
endeavored,  with  great  zeal,  to  obtain  such  an  acknowlegement 
from  the  petty  states  of  Europe,  hut  without  success. 

So  uniform  has  been  the  opinion  of  nations  on  the  subject, 
that  I  know  no  instance  in  which  search  has  been  acknowleged  ; 
and,  as  treaties  alone  give  authority  for  any  stoppage  at  sea,  I 
quote  and  subjoin  the  stipulations  of  all  the  treaties  for  two  cen¬ 
turies,  that  have  relation  to  the  present  question.  From  this 
conventional  law,  it  appears  : 

That  belligerents  are  allowed  to  stop  merchant  vessels  only. 
That  belligerents  are  forbidden  to  approach  within  cannon 
shot  of  neutral  vessels. 


*  cc 


--  In  1653,  the  English  commissioners  presented  a  project,  of  27  articles 
to  Holland,  the  15th  of  which  proposed  that  the  Dutch  ships,  both  men  of  war 
and  private  merchantmen,  besides  striking  their  flags,  should  suffer  themselves 
to  be  visited,  if  required,  and  perform  all  due  offices  of  honor  and  acknowlege¬ 
ment  to  England,  to  whom  the  dominion  and  sovereignty  of  the  British  seas  ot 


l  ight  belonged But  this  was  rejected  by  the  Dutch.  Sir  Philip  M: 
discourse  read  before  Charts:  II. 


37 


That  two  or  three  persons  only  are  allowed  to  board  the  neu¬ 
tral. 

That  the  ship’s  papers  are  to  be  received  as  sufficient,  and  tho 
only  evidence,  unless  fraud  manifestly  appears. 

That "  the  examination  cannot  lawfully  extend  beyond  the 
neutrality  of  the  ship,  the  innocence  of  the  cargo,  and  its  des¬ 
tination. 

These  are  the  only  stipulations,  by  treaty,  relating  to  what  is 
now  termed  the  right  of  search. ...  if  no  treaty  exists  between  tv  q 
states,  each  has  a  right  to  resist  any  stoppage  or  examination 
whatever.  Let  us  inquire,  what  are  the  circumstances  of  the 
pretended  right  of  search,  claimed  by  the  English.... 

They  stop  men  of  war,  or  national  ships,  as  well  as  merchant¬ 
men. 

They  fire  as  often  as  they  think  proper  to  bring  ships  too ;  and 
approach  as  closely  as  the  condition  of  the  sea  will  permit. 
They  order  the  captain,  mate,  and  often  a  majority  of  the  crew 
of  the  neutral,  to  come  on  board  their  cruizers,  and  they  send 
as  many  of  their  ©wn  men  on  board  the  neutral  as  are  neces¬ 
sary  to  break  open  letters,  trunks,  and  packages.  After  look¬ 
ing  over  the  ship’s  papers,  they  go  on  board  the  neutral  and 
order  the  crew  to  be  mustered;  if  any  of  them  have  names, 
familiar  to  the  ears  of  Englishmen,  they  are  pressed  into  the 
British  service  ;  and  the  neutral  thus  plundered  and  weaken¬ 
ed,  is  permitted  to  pursue  the  voyage  as  well  as  she  can. 

At  other  times  they  do  not  even  peruse  the  ship’s  papers,  but 
pronounce  them  false,  send  the  vessel  in  for  adjudication,  and. 
if  it  has  the  good  fortune  not  to  be  condemned,  may  be  con¬ 
tent  with  the  loss  of  time  and  expenses. 

This  outrageous  conduct,  so  opposite  to  the  rights  of  nations, 
and  repugnant  to  the  express  stipulations  of  treaties,  has  been 
invited  and  encouraged  by  acquiescence  ;  at  first,  merchant  ves¬ 
sels  only  were  abused,  and  no  resistance  being  made,  (at  leas1 
by  the  American  government,)  the  British  extended  their  pqw- 
»  ers  to  stopping  the  Baltimore  sloop  of  war  in  1798,  and  seizing 
a  part  of  its  crew  ;  this  not  having  been  resented,  they  com* 

:  pleted  their  insolence  by  the  attack  on  the  Chesapeake. 

Such  abuses  as  these,  call  for  resistance  on  the  part  of  every 
;  state :  there  is  no  treaty  between  the  United  States  and  Eng" 
i  land,  acknowleging  any  right  to  stop  American  vessels,  and  as 
the  right  has  never  had  any  other  origin  or  authority  than  trea¬ 
ties,  it  does  not  exist,  and  an  attempt  to  enlorce  it  must  be  an 
usurpation  justifying  war. 

The  consideration  of  this  part  of  the  subject  shall  be  closed 
in  my  next. 


February  22,  1  POP. 


38 


LETTER  VIII. 

u  W/iai  are  the  maritime  rights  of  belligerents ,  and  the  conse¬ 
quent  duties  of  neutrals 

I  WOULD  not  have  departed  from  a  general  view  of  the 
question  before  me,  but  that  the  subject  is  now  under  consider¬ 
ation  in  congress,  and  attempts  are  making  to  prevent  the  adop¬ 
tion  of  a  wise  and  necessary  measure.  The  general  nature  and 
origin  of  what  is  termed  the  right  of  search,  I  have  explained, 
and  shall  now  notice  some  remarks,  offered  in  a  southern  news¬ 
paper,  in  support  of  British  usurpations. 

“  The  right  of  search,  (says  this  print)  is  established  by 
ancient  and  modern  law,  as  a  right  incident  to  a  state  of  war.’* 

A  want  of  information  on  a  subject  of  this  nature,  would  be 
excusable,  but  the  open  assertion  of  falshood,  in  support  of 
injustice  in  a  public  print  of  the  country,  is  a  shocking  evidence 
of  depravity,  and  of  the  directinfluence  of  the  oppressing  govern¬ 
ment.  What  is  the  real  truth,  as  to  what  is  here  asserted ;  it  is 
that  there  is  no  such  thing  as  ancient  law  on  the  subject,  and  as 
to  modern  law  it  has  no  existence  but  in  treaties,  and  their  cha¬ 
racter  will  be  found  in  the  quotations  subjoined ;  if  by  ancient 
and  modern  law  are  meant  the  opinions  of  writers,  they  are 
expressly  opposed  to  this  pretended  right  of  search. 

“  The  famous  northern  confederacy  during  our  revolutionary 
war  attempted  not  to  resist  this  right.” 

The  reverse  of  this  is  fortunately  susceptible  of  demonstra¬ 
tion:  the  4th  section  of  the  3d  article  of  the  armed  neutrality 
is  as  follows : 

“  No  neutral  ship  shall  be  stopped,  without  a  just  and  well 
grounded  cause  ;  and,  in  such  cases,  justice  shall  be  done  them 
without  loss  of  time :  and  besides  indemnifying,  each  and  every 
time  the  party  aggrieved  are  thus  stopped  without  sufficient 
cause,  full  satisfaction  shall  be  given  to  the  high  contracting- 
powers,  for  the  indignity  offered  to  their  flag.” 

This  determination  was  carried  with  effect  ;  for,  the  British  ; 
continuing  their  usurpations,  Katherine  II.  threatened  war  unless 
reparation  was  made,  and  it  was  made.*  This  very  stipulation  j 
or  principle  was  afterwards  adopted  by  England  in  her  treaties, 
particularly  with  Holland. 

“  During  the  present  war,  between  England  and  France, 
(continues  the  abovementioned  writer)  another  confederacy  was 
formed  by  the  same  powers  that  composed  the  former :  the 
first  confederacy  w'as  not  opposed  with  force  by  Great  Britain, 


*  See  note,  page  31. 


the  second  was,  and  was  broken  up,  and  the  modern  law 
nations  abandoned.5’ 

England  did  not  oppose  the  first  confederacy,  because  she 
was  not  able  to  do  so ;  and  although  Russia  was  detached  from 
the  second,  it  is  not  true  that  it  was  therefore  broken  up,  much 
less  that  the  modern  law  of  nations  was  abandoned. ...the  whole 
of  this  is  a  fiction  ;....lord  Grenville,  in  1801,  in  a  note  to  the 
Danish  minister  respecting  the  second  league  of  armed  neutra¬ 
lity,  said,  “  the  British  government  had  flattered  itself  the 
principles  of  the  former  league  had  been  completely  given  up  V 
but,  in  his  answer,  the  Danish  minister,  thus  emphatically  ex¬ 
pressed  himself : 

u  With  respect  to  the  principles  of  the  northern  powers,  res¬ 
pecting  the  sacred  rights  of  neutrality,  they  have  not  been  aban¬ 
doned:  Russia,  in  her  belligerent  capacity  (as  anally  of  England) 

6 has  only  suspended  their  application,  and  Sweden  and  Denmark 
j  declare  in  the  lace  ol  all  Europe  that  their  system  of  protection 
in  favor  of  innocent  commerce,  is  invariable.”* 

But,  says  this  southern  print... .u  Sir  Wm. Scott  established,  ill 
the  case  ol  the  Swedish  convoy,  the  right  of  search,  and  the 
liability  of  the  neutral  to  seizure  for  resisting-  it.” 

I  From  the  apparent  importance  with  which  the  name  of  sir 
'Wm.  Scott  is  brought  lorward,  a  person  not  conversant  with 
such  subjects,  might  be  led  to  think  him  some  acknowleged  au¬ 
thority,  some  dignified  and  impartial  person,  admitted  by 
all  nations  to  be  equally  pure  and  wise ;  certainly  these  conclu¬ 
sions  follow'  the  above  grovelling  language  of  a  pretended  Ame¬ 
rican  ;  how  much  will  you  be  surprised,  then,  to  learn,  that 
this  sir  Wm.  is  an  English  judge  of  admiralty,  obliged  to  obey 
the  orders  ol  the  British  privy  council,  and  to  give  judgment 
according  to  their  orders ,  and  not  according  to  the  laws  of  na¬ 
tions,  justice,  or  treaties. ...that  it  is  so  much  the  interest  of  this 
judge  to  condemn,  as  he  receives  a  part  of  the  spoil,  and  that 
[lie  is  a  pensioner  of  the  British  government,  as  may  be  seen  by 
referring  to  the  official  lists  of  pensioners  and  placemen. 

The  authority  cl  this  man  is  ol  no  more  importance,  than 
tne  order  or  decree  ol  the  bey  ol  Tripoli :  but,  if  there  be  a 
peculiar  sanctity  in  British  courts,  I  can  shew,  that  as  wrise  and 
good  judges  as  sir  William,  and  in  more  honest  times,  decided 
against  the  usurpation  now  claimed  by  England,  and  shamefully 
defended  by  men  in  America,  pretending  to  value  its  honor  and 
rights,  i  he  case  1  allude  to  is  reported  in  Parkis  Insurance i 
p.  83  and  363. 

•  A  Tuscan  or  neutral  vessel,  with  a  neutral  cargo,  had  sailed 
during  the  American  war  lor  London:  on  her  voyage,  being 
met  by  a  Spanish  cruizer,  she  resisted  a  search,  but  was  over- 
orrm,  carried  into  Spain,  and  there  condemned  for  that  resist- 


40 


ance.  The  vessel  having  been  insured  in  London,  an  action 
was  brought  by  the  owners  upon  the  policy :  the  under-writers 
alleged  that,  they  were  not  bound  to  pay,  because  the  Tuscan 
captain  had  voluntarily  subjected  his  vessel  to  confiscation  by 
resisting  the  search  of  a  belligerent  cruizer. 

Here  then  was  a  case  in  which  the  English,  if  at  all  concern¬ 
ed,  might  be  supposed  willing  to  determine  against  the  neutral; 
but  as  the  judges  who  tried  the  cause,  were  not  bound,  like  sir 
Wm.  Scott,  to  obey  the  orders  of  a  privy  council,  and  as  they 
had  no  interest  in  the  spoil,  they  unanimously  determined  in 
favor  of  the  neutral,  according  to  the  laws  of  nature  and  justice. 
Their  sentiments  are  so  much  in  point,  that  they  are  worthy  of 
quotation  at  large : 

Justice  Willis... If  a  ship  be  neutral,  and  she  be  stopped, 
those  who  stop  her  must  pay  for  the  detention.  But,  it  is  said,  j 
she  must  stop  to  be  searched**,  ,Ifndno  authority  for  this  position-  j 

Justice  Asiiurst....“  I  do  not  find  that  a  neutral  must  submit  I 
to  be  searched.  It  is  rather  an  act  of  superior  force,  always 
resisted  when  the  party  is  able ;  and  the  right  falls  within  ^this 
position,  that  the  belligerent  attempts  to  search  at  his  peril. 

Justice  Buller....u  The  answer  given  to  the  claim  of  search  I 
is  conclusive,  that  the  party  does  it  at  his  peril :  the  practice  of  i 
the  admiralty  confirms  it/ for  they  give  costs  in  cases  of  im-  i 
proper  detention ;  which  they  would  not  clo,  if  neutrals  were,  j 

at  all  events,  liable  to  be  stopped.” 

And,  in  answer  to  the  plea,  that,  as  Spain  had  a  law  declar-  j 
ing  any  vessel  resisting  search  liable  to  confiscation,  the  capture  J 
of  the  Tuscan  was  lawful,  judge  Buller  said,  “  The  detention,  | 
in  conformity  with  the  ordinance  ot  a  foreign  state,  is  a  lisque  j 
that  the  insurer  runs :  the  ordinances  ot  particular  states  form  I 
no  part  of  the  laws  of  nations,  and  a  neutral  captain  is  not  cul¬ 
pable  if  he  infringes  them.” 

Here,  then,  is  positive  British  authority,  if  no  other  will 
answer  those  writers,  to  support  the  outrages  committed  against 
the  rights  and  honor  of  the  United  States,  and  from  which  it 
appears  that  the  laws  of  nations  do  not  require  a  neutral  to  sub¬ 
mit  to  search  ;  that  belligerents  have  no  right,  arising  from  war, 
to  interrupt  a  neutral  trade  ;  that  it  all  the  states  of  Eui  ope 
agreed  that  a  belligerent  had  a  right  to  search,  Ameiica  might 
lawfully  resist,  for  the  ordinances  of  particular  states  are  not 
obligatory  upon  other  states. 

I  will  again  refer  the  reader  to  the  appendix,  for  the  declara¬ 
tion  of  the  celebrated  lord  Chatham  on  this  subject;  which 
shews  that  the  British  government  does  not  admit  its  own  \esq 
sels  to  be  searched  ;  so  that  their  practice  and  the  decisions  of 
their  cqurts  are  in  evidence  against  their  recent  usurpation  of 

power.*  t  v  |J  JBjjji  j  [  u 

From  every  view,  of  this  subject,  therefore,  I  conclude,  that 

belligerents  have  no  privileges  in  relation  to  neutrals,  but  such 


41 


as  neutrals  voluntarily  consent  to  give,  in  their  treaties  :••••  that 
where  no  privileges  are  allowed  by  treaty,  an  attempt  to  exer¬ 
cise  any  of  them,  justifies  resistance  :....and,  that,  when  belli¬ 
gerents  attempt  to  encroach  upon  privileges  allowed,  neutrals 
should  recall  them  altogether. 

February  23,  1809. 


TREATIES 

'Which  fix  and  determine  what  belligerent  cruizers  may  do,  when 
they  meet  neutral  merchantmen  at  sea . 

Treaty  of  Munster ,  1648,  between  Spain  and  Holland*. The 
vessels  of  the  states  of  Holland,  shall  not  be  interrupted  in 
their  trade  with  any  port  or  place  whatever,  even  if  such  place 
should  belong  to  a  power  at  war  with  Spain.  But  permission  is 
not  hereby  given  to  trade,  in  contraband  goods ;  and  in  order  to 
prevent  such  trade  and  that  commerce  may  not  be  interrupted, 
the  vessels  of  Holland  when  they  enter  Spanish  ports,  intend¬ 
ing  to  sail  from  thence  to  an  enemy’s  ports,  shall  shew  their 
passports  stating  the  nature  of  their  cargo,  but  they  must  not  be 
searched  or  visited,  far  less  detained.  But  when  vessels  of 
Holland  shall  be  met  at  sea,  and  notintending  to  break  bulk  in  a 
Spanish  port,  they  shall  not  be  obliged  to  give  any  account  of 
their  cargo.” 

Treaty  of  Upsal  of  1654,  and  confirmed  in  the  treaties  of 
1656, 1661,  and  1700  between  England  and.  Sweden ....“  The  ships 
of  either  party  met  at  sea,  by  the  men  of  war  or  privateers  of 
the  other,  upon  producing  their  passports,  and  no  just  cause  of 
suspicion  appearing,  no  further  inquiry  shall  be  made  respecting 
the  cargo  or  crew  ;  much  less  shall  the  ships  be  interrupted  or 
molested.” 

Treaties  betxveen  France  and  England.... That  of  1655  u  the 
ships  of  either  nation  may  carry  commodities  of  any  kind  to  the 
enemies  of  the  other,  excepting  contraband,  or  to  places  block¬ 
aded;  and  if  the  commanders  of  men  of  war  or  privateers, 
shall  interrupt  the  vessels  so  trading,  they  shall,  besides  being 
corporally  punished,  pay  all  damages  if  they  are  able;”  1677, 
and  renewed  at  Ryswick,  1697  :  “  vessels  of  either  party  met 
at  sea,  on  producing  their  passports,  shall  not  be  detained; 
violators  shall  be  corporally  punished ;”  1713,  treaty  of  Utrecht : 
11  It  shall  be  wholly  unlawful  to  search  vessels  ;  men  of  war  and 
privateers  shall  not  approach  within  cannon  shot,  shall  send  bu" 
two  or  three  men  to  examine  passport  as  fixed  by  treaty,  and  if  no 
Iraud  appears,  it  must  satisfy ;”  1748,  Aix  la  Chapelle ,  between 
England,  France,  and  Holland,  renews  this  principle....  1783, 
Again  renewed, 


Treaties  between  France  and  Spain;  1659  to  1/63.. Ife 
vessels  of  either  may  trade  with  enemies  of  the  other,  in  all 
goods  but  military  stores  and  furniture :  men  of  war  meeting- 
merchantmen  shall  not  approach  within  cannon  shot,  and  shall 
send  but  one  or  two  men  to  examine  passports,  which  being 
correct  shall  preclude  further  inquiry.” 

Treaties  between  England  and  Holland;  1668,  1674,  1678, 
1685,  1689,  1700,  1709,  1713,  1784... .u  vessels  at  sea  or  else¬ 
where  shall  not  be  detained :  the  passport  shall  preclude  all 
inquiry  or  search ;  and  unless  there  appears  manifest  fraud, 
good  faith  shall  always  be  given  to  it.” 

The  same  principles  are  established  in  the  following  treaties, 

between :.... 

England  and  Denmark,  1690,  1701. 

England  and  Turkey,  prohibits  any  examination,  1675. 

England  and  Spain,  1713,  1715,  1783.  ^ 

England  and  Barbary  powers,  1662,  1750,  lul. 

England  and  Russia,  1766. 

United  States  and  France,  1778,  1800. 

and  Holland,  1782. 
and  Sweden,  1783. 

Armed  neutrality,  1780. 

Second  armed  neutrality,  1801.- 


LETTER  IX. 

a  IV hat  are  the  maritime  rights  of  belligerents ,  and  tne  conse¬ 
quent  duties  of  neutrals  ? 

THE  last  point,  for  consideration,  arising  out  of  the  above 
question,  relates  to  the  jurisdiction  of  a  state,  upon  its  sea 
coast ;  and  as  the  decision  of  this  point  may  be  more  correctly 
ascertained,  by  making  the  inquiry  general,  I  will  endeavor  to 
explain.. ..what  is  the  distance  to  which  a  nation  may  justly  ex¬ 
tend  its  maritime  dominions  ? 

§  1.  PRETENSIONS  OF  PARTICULAR  STATES. 

Among  the  ancients,  it  docs  not  appear,,  that  there  weie  an} 
acknowleged  or  defined  limits,  beyond  which. a  particular  state, 
could  not  exercise  authority,  without  abridging  the  rights  ot 
others;  power  seems  to  have  determined  the  only  boundary. 
The  Greeks  and  Carthagenians,  especially,  not  only  interdicted 
communication  with  particular  ports  and  coasts,  but  expelled 
the  vessels  of  other  states  from  the  seas  under  their  warlike 
control.... the  latter  exercised  a  supremacy,  by  means  the  most 
unjust  and  inhuman.  1  he  Romans  too,  as  soon  as  they  became 
masters  of  the  shores  of  the  Mediterranean,  refused  admittance 
to  the  vessels  of  other  states,  within  the  straits  ot  Gibraltar, 


43 


Such  perversions  and  abuses  of  the  gifts  of  nature,  were, 
however,  insignificant,  when  compared  with  the  claims  of  mo¬ 
dern  states.  Until  the  15th  century,  there  were,  comparatively, 
but  a  few"  petty  seas  to  traverse  and  control ;  subsequent  dis¬ 
coveries  opened  to  the  view  of  Europe,  boundless  oceans,  invit¬ 
ing  employment,  and  affording  inexhaustible  means  for  enterprize 
and  emolument.  But,  no  sooner  had  the  Portuguese  discover¬ 
ed  the  new  route  to  India,  than  they  asserted  an  exclusive  right 
to  navigate  the  seas,  bounding  their  discoveries :  aware  of  its 
brittle  tenure,  they  obtained  a  confirmation  of  their  claim  from 
the  popes:  and  so  potent  was  this  authority,  that  even  the  Eng¬ 
lish  consented,  in  several  treaties,  to  abridge  their  unquestionable 
right  to  navigation  in  those  seas. 

The  Spaniards,  following  the  example  of  their  neighbors, 
claimed  dominion  over  the  whole  Indian  ocean,  and  the  popes 
were  so  liberal  as  to  guarantee  this  usurpation  also.  The  states 
of  Europe,  however,  wTho  began  to  understand  their  interests, 
refused  to  acknowlege  the  pretension :  Philip  II.  having  com¬ 
plained  to  queen  Elizabeth,  that  her  subjects  were  in  the  habit 
of  visiting  seas  and  territories  belonging  to  Spain,  that  princess 
answered  u  that  she  could  not  acknowlege  the  right  he  pretended 
to  exercise,  and  that  he  might  with  as  much  justice  and  effect 
forbid  the  use  of  the  air  as  that  of  the  sea.”  Here  ended  the 
pretensions  of  Spain. 

The  Dutch,  as  soon  as  they  supplanted  the  Portuguese  in 
India,  forgetting  their  situation  in  Europe,  pursued  the  policy 
©f  their  predecessors.  Spain  acquiesced,  and  consented  in  1648, 
to  restrain  its  commerce  in  the  Indies;  but  England  disregarded 
the  claim,  pushed  its  enterprizes  with  success,  and  ultimately 
superceded  the  Dutch  and  every  other  European  nation  in  the 
eastern  oceans.  This  is  the  more  remarkable,  as  w  hilst  the  Bri¬ 
tish  were  quarreling  with  the  Dutch  in  Europe  about  the  British 
seas,  the  latter  were  using  the  British  arguments  to  exclude  their 
rivals  from  India.  1  he  attempts  of  the  Portuguese,  Spaniards, 
i  and  Dutch,  to  usurp  the  navigation  of  the  ocean  were  equally 
fruitless  ;  and  particularly  owing  to  the  enterprizes  of  the  British. 

This  conduct  of  England,  however,  was  the  effect  of  her  com¬ 
mercial  ambition  and  her  avarice,  not  of  any  desire  to  give  free¬ 
dom  to  the  seas.  1  his  is  evident  from  the  pertinacity,  with 
which  she  asserted  a  dominion  over  the  four  seas  surrounding 
the  British  islands,  comprehending  in  this  pretension,  writh  her 
characteristic  contempt  of  public  and  moral  obligations,  the  waters 
on  the  opposite  coasts  of  France,  Spain,  and  Norway.  As  she  had 
not  paid  extraordinary  respect  to  the  bulls  of  the  popes,  the  claim 
to  the  British  seas  was  founded  upon  the  right  of  prescription.... 
that  is,  because  she  had  used  them  or  asserted  the  claim,  time  out 
of  mind,  the  seas  were  said  to  be  ol  right  her  property.  Until 
within  the  last  century,  this  claim  created  incessant  warfare,  be¬ 
tween  England,  b ranee,  and  Holland  :  but.  at  the  close  of  every 


war,  however  disastrous,  the  French,  especially,  refused  to  ae- 
knowlege  her  pretension ;  and  in  the  treaty  of  Breda,  Louis 
XIV.  would  not  consent  even  to  call  the  neighboring  seas,  by 
the  accustomed  term,  the  British  sea  or  channel... .the  words 
used  were  St.  George’s  channel.  If  the  claim  has  not  latterly 
been  upheld,  with  the  former  vigor,  it  has  not  been  abandoned :  lor 
in  the  case  of  the  Swedish  convoy,  tried  in  1799,  sir  Wm.  Scott, 
alleged  that  the  resistance  to  search  derived  additional  crimina¬ 
lity,  from  the  circumstance  of  its  having  been  made  in  the  Bri¬ 
tish  channel  the  laxity,  is  perhaps,  to  be  accounted  ior  in  the 
pretensions  to  universal  dominion  on  the  seas,  which,  though 
not  openly  avowed,  is  absolutely  carried  into  effect. 

Besides  these  instances,  in  which  dominion  over  certain  seas 
has  been  asserted,  the  claims  of  the  Venetians  to  the  Adriatic, 
of  the  Genoese  to  the  Ligurian,  and  the  Poles  and  Danes  to  the 
Baltic,  seas,  evince  the  injustice  of  particular  states,  and  the  ne¬ 
cessity  of  some  settled  laws  of  nations,  that  cannot  be  abandon¬ 
ed  and  abused  at  the  discretion  of  every  piratical  and  ambitious 
government. 

It  is  to  be  remarked,  however,  that,  with  the  exception  ot 
England,  all  nations  have  at  this  day  abandoned  claims  to  juris¬ 
diction  beyond  what  common  liberality  and  prudence  justify. 

§  2.  OPINIONS  OF  WRITERS  ON  THE  SUBJECT. 

Inconsistent,  as  the  above  mentioned  claims  were,  with  the 
laws  of  nature  and  the  rights  of  nations,  they  all  had  their  ad¬ 
vocates  ;  even  the  pretensions  of  Spain  and  Portugal,  were  as 
strenuously  sustained  by  the  pen  as  by  the  sword.  Selden , 
Puffendorjf. \  Heineccius ,  Wolfius ,  and  other  able  men,  supported 
pretensions  at  this  day  exploded:  their  positions  seem  to  hate 
been  founded  upon  prescription,  treaties,  and  force. 

But  the  advocates  of  maritime  freedom  are  much  more  nu¬ 
merous,  and  at  least  of  as  distinguished  abilities.  Grotius ,  Bin - 
kershoeck ,  Galliam ,  Valin  y  Vattel ,  Hubner ,  and  Azuni ,  have 
placed  the  question  almost  beyond  the  reach  of  controversy. 
As  Grotius  and  Vattel  are  in  general  the  favorite  authorities  of 
the  English,  the  sentiments  of  these  writers  respecting  the  claim 
to  the  British  seas,  are  of  the  more  consequence.  .  The  former 
declares,  that  u  if  any  nation  attempts  to  exercise  a  superior 
control  upon  the  open  sea,  it  violates  the  laws  of  nature  and  na¬ 
tions  ;  and  all  states  are  bound  to  rise  up  and  resist  the  tyranny, 
since  their  welfare  is  concerned.”  \  attel  says,  u  the  righi  of 
fishing  and  navigating  in  the  open  sea,  being  common  to  all 
men,  the  nation  that  abridges  it,  injures  all  states,  and  justifies 
war:”  again,  if  a  nation  finds  that  from  time  immemorial,  it 
has  possessed  the  exclusive  navigation  of  a  particular  sea,  it  ha.; 

*  If  this  argument  was  even  colorable,  wliat  is  the  character  of  the  a. 
on  the  United  States  frigate  Chesapeake  ? 


45 


not,  therefore,  a  right  to  deprive  others  of  a  use  of  it.”  Some 
of  the  English  writers  join  in  these  sentiments  ;  particularly 
Hume ,  in  his  history  of  England,  and  very  lately,  Dr .  Arthur 
Browne ,  professor  of  civil  law  in  the  college  of  Dublin  :  speaking 
of  the  claim  of  England,  this  gentleman  says,  “  the  claim  of 
England  to  the  dominion  of  the  neighboring  seas,  was  as  extra¬ 
vagant  as  it  was  haughty ;  it  could  have  no  foundation  but  in 
treaties  ;  and  if  it  rested  merely  on  use,  was  supported  solely 
by  power.” 

The  pretension  to  a  dominion  of  the  ocean,  founded  upon 
naval  superiority,  is  thus  justly  and  forcibly  answered  by  Galliani : 
u  what  would  the  advocates  of  this  doctrine  think  of  a  sove¬ 
reign,  who  having  two  hundred  thousand  men  in  his  pay, 
should,  for  that  reason,  suppose  himself  master  of  those  prin¬ 
ces,  who  had  only  thirty  or  forty  thousand  men  in  their  service  ? 
Would  it  not  be  confounding  the  ideas  of  right  with  those  of 
power,  and  seem  to  establish  a  theory  always  unjust,  often  ar¬ 
rogant,  and  sometimes,  in  spite  of  its  success,  vain  and  ruin¬ 
ous.” 

.  Several  writers  have  attempted  to  sustain  the  right  of  domi¬ 
nion,  and  even  of  property,  in  the  ocean,  by  supposing  it  sus¬ 
ceptible  of  the  same  control  and  division  as  the  land.  This  has 
been  answered  in  these  terms  : 

Property  inland  originated  in  the  necessities  of  man;  before 
lands  were  parcelled  out  for  cultivation,  they  did  not  furnish 
adequate  sustenance ,  since  tne  distribution,  they  have  not  only 
furnished  abundance  but  superfluity,  creating  the  calls  for  bar¬ 
ter  and  exchange.  Dominion  on  land  originated  in  the  neces¬ 
sities  of  society,  men,  for  their  safety,  giving  a  control  to  go¬ 
vernment  over  their  lives  and  fortunes. 

On  the  other  hand,  the  seas  cannot  become  the  property  oi 
particular  states,  nor  can  they  be  divided :  all  nations  have  a 
common  property,  since  the  ocean  is  the  only  medium  of  inter 
course  between  some  civilized  nations,  since  it  furnishes  all  the 
objects  that  all  men  can  wish  to  attain  by  its  use,  and  since  its 
use  by  each  nation  tends  to  the  happiness  of  all  the  rest.  I3o- 
minion  cannot  be  exercised  by  one  or  by  a  number  of  states, 
jince  it  implies  not  only  lawful  possession,  but  ability  to  exer¬ 
cise  it,  which,  in  the  true  sense  of  the  term,  is  not  practicable. 

7  According  to  the  opinions  of  writers  on  the  laws  of  nations. 
Uierefore,  a  predominant  or  exclusive  control  over  the  open  sea. 
.annot  he  justified  by  the  laws  oi  nature,  by  a  superiority  of 
power,  nor  by  custom. 

I  hese  opinions  relate  to  the  open  sea,  but  there  are  particu- 
ar  seas  or  gulfs,  over  which  all  writers  agree,  a  dominion  nun 
)e  exercised  :  a  sea,  all  the  shores  of  which  are  under  the  domi- 

Iuon  of  a  particular  nation,  and  the  entrance  into,  which  that 
lation  can  oppose  or  prevent,  is  considered  its  property  :  in  like 
manner,  if  two  or  more  states  possess  the  shores  of  a  particulai 


46 

sea,  and  can  prevent  the  entrance  of  ships  belonging  to  other 
states,  they  may  do  so,  if  they  think  proper;  but  one  of  the 
states  bordering  on  the  sea,  has  no  right  to  oppose  an  intercourse 
that  one  or  more  of  the  neighboring  states  may  choose  to  en¬ 
tourage. 

The  above  general  sentiments  of  writers  relative  to  the  ocean, 
are  confirmed  in  all  modern  treaties  ;  there  does  not  exist  one, 
in  which  a  claim  to  a  greater  extent  of  dominion  is  allowed,  than 
safety  demands.  What  this  extent  is,  is  therefore  to  be  consi¬ 
dered.  Writers  and  treaties,  of  the  17th  century,  stated  the 
distance  to  which  nations  might  extend  a  jurisdiction  on  their 
coasts,  some  at  100,  others  at  60,  and  a  few  at  10  miles;  in 
the  1 8th  century,  the  rule  became  almost  universal,  that  the  juris¬ 
diction  of  a  state,  of  right,  extended  three  miles  from  the  shore, 
that  being  the  distance  of  cannon  shot,  and  this  principle  is  now 
adopted  by  all  writers  and  in  all  treaties.  The  right  of  a  state 
to  this  extent  at  least,  is  evidently  just,  since  without  interfering 
with  the  rights  of  others,  the  state  is  thereby  enabled  to  main¬ 
tain  its  fisheries  and  coasting  trade  ;  to  guard  against  smuggling  t 
and  to  maintain  its  sovereignty  and  neutrality,  during  wars  be¬ 
tween  neighboring  states. 

§  3.  CONSEQUENT  RIGHTS  OF  NEUTRALS. 

The  above  principles  being  now  generally  respected,  the  rights 
of  the  neutral  state  are  readily  ascertainable,  upon  the  ground 
of  sovereignty:....#  a  belligerent  attacks  an  enemy  within  can¬ 
non  shot  of  the  neutral  shore,  the  sovereignty  of  the  neutral  is 
violated,  and  reparation  is  demandable:....#  a  belligerent  takes 
nn  enemy’s  ship  within  cannon  shot  of  the  neutral  shore,  it  is 
not  lawful  prize,  and  the  neutral  is  bound  to  demand  reparation  ; 
a  ship  taken  from  a  belligerent  cannot  be  re-captured  within  the 
neutral  jurisdiction ;  a  belligerent  ship,  sailing  from  a  neutral 
port  and  from  within  neutral  jurisdiction,  cannot  lawfully  be 
followed  by  an  enemy’s  ship,  until  after  a  lapse  of  24  hours. 
These  are  considered  by  writers,  and  acknowleged  by  all  states 
but  England,  privileges  necessarily  belonging  to  a  neutral ;  and 
indeed  are  so  essential  to  its  character,  that  none  of  them  can 
be  abridged  or  abandoned  without  manifest  injury  and  dishonor. 

February  25,  1809. 


LETTER  X. 

I  HAVE  endeavored  to  present  to  you,  my  friends,  as 
distinct  a  view  as  possible,  of  the  real  character  of  what  have 
been  termed  the  laws  of  nations ,  ar.d  to  explain  the  ongin  a 
force  of  what  are  called  belligerent  rights.  That  I  have  give; 


47 

ft  correct  analysis  of  the  former,  must,  I  think  be  ob$erv  ec?T 
when  you  reflect,  that  the  freedom  and  privileges,  which  these 
laws  are  said  to  guarantee  to  neutrals,  have  ever  been  violated 
and  abused,  and  that  they  have  now  no  longer  any  existence 
whatever.  Concessions  on  the  part  of  neutrals,  were  repre¬ 
sented  by  belligerents  as  their  inherent  rights,  and  these  rights 
have  been  gradually  extended,  until  a  neutral  flag  no  longer  ap¬ 
pears  upon  the  ocean. 

In  any  ordinary  circumstances,  the  knowlege,  that  the  viola¬ 
tion  of  neutral  rights  has  reached  the  utmost  bounds  of  enormi¬ 
ty,  would  be  sufficient  to  fix  the  attention  and  call  forth  the 
energies  of  every  neutral  state  :  it  would  be  unnecessary  to 
inquire,  how  the  crisis  has  been  produced,  and  what  state  has 
been  most  forward  in  usurpation.  But  in  the  present  state  of 
American  affairs,  it  must  not  only  be  useful  to  make  such  inqui¬ 
ry,  but  it  is  rendered  necessary  by  the  clamors  of  a  faction 
v  ithin  our  country.  Our  rights  have  been,  in  the  whole  course 
of  the  present  war,  the  sport  of  the  belligerents  ;  and,  now  that 
we  must  assert  them,  if  we  hope  to  maintain  a  character  among 
nations,  it  becomes  us  to  determine,  whether  we  are  bound  to 
extend  our  vengeance  to  both  belligerents,  and  if  not,  against 
which  of  them  we  have  the  greatest  cause  for  complaint. 

A  factious  print,  devoted  to  England,  (the  New  York  Even¬ 
ing  Post)  asks  these  questions  : 

Sha11  we  have  war  with  France,  the  first  aggressor,  and* 
with  regard  to  us,  the  weakest  enemy  r” 

“Shall  we  declare  wat*  with  England?  Or  shall  a  useless 
embargo  be  continued  r” 

I  nese  questions  imply,  that  the  original  aggressor  is  answer- 
able  for  all  the  injury  that  may  follow,  and  that,  as  England 
merely  retaliated,  we  have  no  cause  of  complaint  against  her ; 
now,  although  I  deny  the  justice  of  retaliation  on  the  property 
and  rights  of  a  neutral,  for  the  injury  done  by  a  belligerent,  I  am 
v\  filing  to  assume  this  rule  of  the  Evening  Post,  as  correct  \  the 
question  therefore  reaches  this  point ;  as  stated  by  “  a  Farmer,” 
whose  inquiries  I  am  answering....1*  what  has  been  the  conductor 
France,  &c.  ?  It  is  my  intention,  to  endeavor  to  shew,  that 
England  has  been  the  constant  and  principal  violator  of  neutral 
rights  at  all  times  ;  that  it  has  ever  been  her  policy  to  destroy 
he  commerce  of  other  states ;  and  that  in  the  present  war,  she 
was  the  original,  and  has  been  infinitely  the  vilest  aggressor. 

As  the  conduct  of  the  English  to  Holland,  exhibits,  perhaps, 
n  as  a  strong  a  light  as  is  necessary,  the  perfidious  and  jealous 
haracter  of  their  government,  and  as  it  is  confined  to  circum  * 
tances  antecedent  to  our  revolution,  I  will,  in  this  letter,  give 
is  concise  a  sketch  of  it,  as  the  subject  requires.  In  consider- 
ng  this  subject,  you  must  bear  in  mind,  my  friends,  that,  the 
xcuses,  which  England  at  this  day  makes  for  her  conduct,  did 
•  ot  exist  in  relation  to  the  Dutch. ...they  were  a  people  as  inca- 


pable  as  unwilling  to  threaten  or  disturb  the  interests  of  Europe, 
or  to  subjugate  others ;  they  excited  apprehension  by  their  ener¬ 
gy  and  industry,  but  these  were  as  terrific  to  England  as  the 
arms  of  France,  and  hence  their  fate. 

CONDUCT  OF  ENGLAND  TO  THE  DUTCH. 

The  Dutch,  being  compelled  by  the  nature  of  their  country, 
to  turn  all  their  attention  to  commercial  pursuits,  laid  the  foun¬ 
dation  of  their  future  trade,  before  the  English  had  a  vessel  at 
sea,  or  even  a  commercial  character.  T  hey  hired  their  vessels  to 
Charlemagne,  and  other  princes  of  the  continent;  and  were  so 
fortunate  as  carriers,  even  at  this  period,  that  they  turned  a  poi- 
tion  of  their  attention  to  other  commercial  pursuits.  About  the 
year  800,  they  began  to  engage  in  the  herring  fisheries  on  the 
coast  of  Scotland,  and  encrtased  in  wealth  and  consequence  by 
overcoming  obstacles  that  to  any  other  people  would,  perhaps, 
have  appeared  insurmountable :  at  this  time  the  English  had 
acquired  some  marine  force,  and  among  its  earliest  efforts  were 
an  attempt  to  subject  the  Dutch  fishermen  to  tribute  ;  and  they 
insisted  upon  an  exclusive  right  to  navigate  the  seas  surrounding  ; 
Britain.  The  Dutch,  refusing  to  pay  the  tribute,  were  repeat¬ 
edly  driven  from  the  fisheries,  and  particularly  in  1297  ;  they  j 
remonstrated  at  first,  and  even  consented  not  even  to  approach  t 
within  eight  miles  of  the  coast,  but  the  English  persisted  in  k 
their  claim,  and  even  added  another,  requiring  the  Dutch  to 
salute  all  British  vessels  met  at  sea.  The  Dutch  at  length  re¬ 
sorted  to  vessels  of  war  for  their  defence. 

In  these  circumstances  originated  the  wars,  that,  for  above 
two  centuries,  were  carried  on,  almost  without  intermission, 
between  these  states.  The  conduct  of  England  originated  in 
that  insolent  and  domineering  spirit,  that  has  constantly  marked 
her  character  ;  it  had  not  at  first  even  the  excuse  of  rivalry,  for 
the  British  were  unable  to  engage  in  the  trade,  from  which  they 
wished  to  drive  every  other  state  :  until  the  13th  century,  their 
marine  had  a  piratical  and  not  a  commercial  character,  and  even 
so  late  as  1415,  they  were  so  destitute  of  shipping  as  to  be> 
obliged  to  transport  troops  to  the  continent  in  Dutch  vessels  J 
In  their  early  wars  with  the  continental  states,  they  paid  nc 
respect  whatever  to  neutrals,  and  particularly  in  1337,  seized 
every  Dutch  vessel  they  met  proceeding  to  France,  regardless 
of  the  nature  of  the  cargo.  Under  all  these  disadvantages 
however,  the  Dutch  succeeded  in  forming  a  marine,  and,  unti 
the  reign  of  Elizabeth,  maintained  a  naval  superiority ;  extend 
ing  their  trade  to  India,  and  there  establishing,  in  imitation  o 
Spain  and  Portugal,  those  monopolies,  which,  although  the; 
served  the  present  interests,  tended  to  depress  the  character  o 
Holland,  and  expose  it  still  more  to  the  hatred  of  England. 

In  1576,  the  English,  for  the  first  time,  turned  their  atten 
tion  almost  exclusively  to  commerce ;  and  commenced  a  nev 


49 

node  of  attack  upon  the  Dutch.  Elizabeth  determined  to  re- 
nain  in  peace  with  them,  but  to  keep  them  involved  in  war  on 
he  continent :  she  obtained  a  double  purpose  bv  aiding  the 
Dutch  against  Spain  ;  the  latter  was  weakened,  and  the  former 
mrchased  the  faithless  friendship  of  England  only  by  surren- 
lering  the  important  trading  towns  of  Flushing  and  Brille,  and 
:he  fort  of  Rammekins.  The  Dutch  marine  consequently  be-  \ 
:ame  depressed,  and  the  English  gained  the  ascendancy,  which 
vas  followed  by  several  successful  efforts  to  destroy  their  India 
rade,  their  fisheries,  and  their  carrying  trade.  With  the  reign 
>f  Elizabeth,  the  spirit  of  persecution  did  not  cease,  though  the 
hility  was  checked :  and  the  Dutch,  for  a  time,  regained  in  a 
;reat  degree,  the  influence  they  had  lost  in  the  16th  century. 

In  1616,  they  purchased  the  towns  Elizabeth  had  acquired; 

>ut,  although,  James  I.  consented'  to  the  sale,  from  avarice, 
le  conceived  a  fatal  enmity  to  Barneveldt,  who  had  recovered 
hese  towns  for  his  country.  This  minister  had,  besides,  re¬ 
used  to  acknowlege  the  supremacy  of  England  on  the  seas,  and 
esisted  the  claim  of  tribute  for  the  fisheries.  So  formidable  a 
nan  it  was  necessary  to  remove,  and  so  successfully  were  in- 
rigue  and  corruption  employed,  that  his  own  countrymen  be¬ 
anie  the  instruments  of  his  destruction ;  he  perished  on  the 
caffold,  after  a  long  life  of  faithful  service  to  his  country,  the 
rictim  of  James’s  private  enmity,  and  of  England’s  commercial 
ealousy.  No  sooner  had  the  Dutch  basely  sacrificed  this  great 
nan  and  minister,  than  James  renewed  his  pretensions  upon  the 
eas  and  fisheries,  and  wrote  to  them,  u  that  if  they  persisted 
n  denying  his  rights,  he  would  not  only  drive  them  off'  the  sea, 

>ut  deprive  them  of  their  republic  also  a  threat,  that,  how- 
ver  willing,  James  was  unable  to  put  into  execution. 

In  1651,  however,  Cromwell  really  became  formidable  to  their 
welfare.  To  destroy  their  carrying  trade,  and  at  the  same  time 
o  raise  the  navy  of  England,  he  framed  the  celebrated  naviga- 
ion  act.. ..the  most  perfect  system  of  monopoly  yet  devised. 

‘till  jealous  of  their  India  trade  and  fisheries,  and  unwilling  to 
esort  to  force  in  the  first  instance,  to  deprive  the  Dutch  of 
oth,  he  proposed  a  union  of  England  and  Holland ,  alleging- 
s  motives  for  it  the  necessity  of  defending  religion,  and  the 
ertainty  that  they  could,  if  united,  secure  the  commerce  of 
he  whole  world  to  themselves.  The  Dutch,  however,  rejected 
he  proposal,  and  so  mortified  Cromwell,  that  he  sent  them 
irord....w  that  he  would  permit  no  flag  but  that  of  England  to 
ppear  on  the  ocean,  the  sovereignty  of  which  had  been  ac- 
uired,  and  would  be  retained,  by  the  sword.”  Accordingly, 
/ithout  any  declaration  of  war,  all  the  Dutch  vessels  met  with 
fere  immediately  captured  ;  and,  in  his  instructions  to  his  admi- 
al  Blake,  Cromwell  told  him,  u  to  drive  the  frogs  back  to  their 
\arshes.”  Several  naval  actions  followed,  as  desperately  fought 
s  any  ever  witnessed;  in  one  battle  the  Dutch  triumphed,  four 

G 


y,  ere  drawn  battles,  and  the  two  last  were  in  favor  of  the  Englisn^ 
who  dictated  the  terms  of  the  peace,  which  followed  m  165 
Yet  it  was  in  these  adverse  circumstances,  that  the  Dutch  re¬ 
fused  to  grant  any  right  to  search  their  ships.  # 

In  1661,  Charles  II.  pursued  the  policy  and  projects  o 
Cromwell :  he  fitted  out  a  powerful  naval  force,  and  in  the  mo¬ 
ment  of  peace  seized  the  Cape  de  Verd  islands,  the.  utc 
fleets  on  the  coast  of  Guinea,  and  all  the  merchantmen  m  Eng¬ 
lish  ports  or  found  at  sea.  Holland  protested  against  tnts  breach, 
of  all  laws  and  treaties,  and  denying  the  purity  ot  English 
courts,  proposed  to  refer  the  subject  to  the  determination  oi 
any  neutral  power ;  but  the  proposal  was  rejected  and  war  e 
dared.  Charles  alleged  in  excuse  for  his  conduct,  the  denial 
cf  his  rights  to  the  sovereignty  of  the  seas,  and  in  parliament 
his  ministers  declared  that  Holland  must  be  destroyed,  it  Eng¬ 
land  hoped  to  secure  the  trade  to  India.  The  Dutch  having 
ablv  maintained  their  rights  at  sea,  and  having  even  laid  se\  era 
towns  on  the  English  coast  under  contribution,  Charles  con¬ 
sented  to  conclude  a  peace,  in  1672.  As  soon  as  the  Dutc 
were  lulled  into  a  belief  of  security,  Charles  sent  another  fleet 
to  sea,  before  a  declaration  of  war,  to  destroy  the  Smyrna  trade, 
and  secret  emissaries  to  set  fire  to  the  magazines,  arsenal,  and 
India  house  at  Vlie,  in  Holland:  both  projects,  however,  fail¬ 
ed,  and  war  was  declared.  To  render  the  ruin  of  Holland 
certain,  Lewis  XIV.  was  prevailed  upon  to  join  England,  in 
these  circumstances,  the  Dutch  were  reduced  to  extremities, 
and  by  the  intrigues  of  the  prince  of  Orange,  Charles  s  nephew, 
thev  were  induced  to  sacrifice  the  De  Witts,  as  they  had  before 
sacrificed  Barneveldt;  they  then  obtained  an  ignominious  peace 
with  England,  but  at  the  instance  of  the  prince  of  Orange,  tne 
war  was  continued  with  France.  Sir  Wm.  Temple  English 
minister  at  the  Hague,  and  sir  John  Dalrymple,  both  acknou- 
We  that  England  interfered  to  prevent  a  peace  between  fiance 
and  Holland,  in  order  that  the  English  might  profit  by  the  weak¬ 
ness  of  both:  in  1678,  however,  peace  took  place,  and  the 
Dutch  became  little  better  than  colonists  of  the  English.  W  hen 
the  prince  of  Orange  became  king  of  England,  in  1689,  they 
ioined  in  a  war  against  France,  which  continued  until  169/, 
and  in  all  the  subsequent  wars  until  that  of  1780,  so  fatal  an 
influence  was  retained  by  the  British  as  to  involve  them  m  debt 

m  A  particular  instance  of  hostility  and  jealousy  was  remarked 
in  one  of  these  wars  :  the  British  refused  to  permit  the  Dutch 
to  furnish  more  than  one-third  of  the  marine  torce,  and  obliged 
them  to  furnish  two-thirds  of  the  land  force.  By  these  and 
other  such  schemes,  the  navy  of  England  was  raised  upon  the 
ruins  of  that  of  the  Dutch,  whose  interests  were  constantly  sacri¬ 
ficed  in  their  treaties  with  other  powers.  So  steadily  was  this  poli¬ 
cy  pursued,  that  from  being  potent  rivals,  the  Dutch  became  a: 


abject  as  the  Portuguese. ...their  possessions  in  India  were  plun¬ 
dered  and  seized,  and  their  already  crippled  trade  in  Europe  be¬ 
came  a  prey  not  only  to  every  power,  with  which  England  en¬ 
gaged  in  war,  but  to  the  Algerines,  who  were  engaged  to  de¬ 
spoil  the  wrecks  of  a  commerce  once  so  flourishing  and  great. 

Under  all  these  misfortunes,  the  Dutch  national  character  re¬ 
tained  some  portion  of  its  ancient  faculty  for  industry;  and  a  few 
years  of  peace  gave  new  life  to  their  enterprize ;  but,  like  other 
nations  of  the  present  time,  they  vainly  hoped  by  an  honest  neu¬ 
trality  in  the  war  of  1755,  to  recover  a  portion  at  least  of  their 
former  consequence.  At  this  time,  a  treaty  (that  of  1 668)  was  in 
force  between  England  and  Holland,  the  8th  and  9th  articles  of 
which,  in  particular,  stipulated,  that  English  ships  should  not  ap¬ 
proach  w  ithin  cannon  shot  of  Dutch  vessels,  should  send  but  two 
or  three  men  on  board  u  to  see  their  passes,”  and  should  not  de¬ 
tain  the  vessel  unless  laden  with  contraband.  The  war  had 
scarcely  commenced,  however,  when  the  English  detained  all  the 
Dutch  merchantmen,  they  found  engaged  in  a  carrying  trade  of  in¬ 
nocent  goods  ;  and  they  condemned  them  under  what  has  ever 
since  been  called  the  rule  of  ’56.. ..an  outrage,  that  had  scarcely  a 
parallel  or  precedent,  in  enormity,  among  civilized  states.  From 
this  blow  the  Dutch  never  after  recovered,  and  it  may  well^be 
questioned,  whether  they  suffered  more  from  the  hostility  of  the 
English  in  war,  than  from  their  perfidy  in  peace. 

The  same  causes  which  excited  the  enmity  of  England  against 
the  Dutch,  created  an  hostility  to  every  other  maritime  power ; 
our  own  maritime  industry",  our  extent  and  rapidity  of  com¬ 
mercial  intercourse,  our  facilities  and  cheapness  of  trade,  pro¬ 
voked  those  outrages  and  insults,  against  which  we  had  no  suc¬ 
cessful  means  of  relief,  but  in  checking  our  prosperity,  and  if 
this  should  fail,  we  can  hope  for  no  redress  but  in  war. 

March  7,  1809. 


LETTER  XI. 

ALTHOUGH  the  remarks  which  I  offered  in  my  last  let¬ 
ter,  respecting  the  conduct  of  Britain  to  the  Dutch,  afford  but  a 
faint  idea  of  the  policy  of  its  government,  I  would  not  resort  to 
a  further  inquiry,  if  the  peculiar  state  of  our  foreign  relations, 
and  the  clamor  of  the  advocates  of  England,  did  not  invite  it. 
It  is  a  most  instructive  investigation  ;  we  see  in  it  at  every  step, 
the  very  same  jealousy,  envy,  rapacity,  and  corruption  ;  we  see 
the  same  efforts  made  to  destroy  the  best  men,  the  fathers  of  our 
liberties;  the  glory  of  our  country;  the  same  insolence,  the  same 
perfidy.  In  the  present  letter,  therefore.,  several  instances  will  be 


noted,  of  the  maritime  tyranny  and  oppression,  towards  other 
states,  particularly  France,  which  have  terminated  in  almost 
realising  the  threat  of  Cromwell,  that  no  flag  but  that  of  Eng¬ 
land,  should  appear  on  the  ocean. 

The  wars  between  England  and  France,  originated  in  the 
Norman  conquest,  in  1066,  and  in  the  claims  of  the  former,  to 
the  sovereignty  of  the  seas  surrounding  its  islands. ...Possessing 
an  important  part  of  France,  and  favored  by  the  turbulent  dukes 
who  held  fiefs  under  its  throne,  the  ambition  of  the  Norman- 
English  was  excited  to  become  masters  of  the  whole  nation. 
To  attain  this  purpose,  fourteen  wars  were  carried  on  against 
France,  before  the  real  object  was  avowed.  In  1327,  Edward  III. 
assumed  the  title  of  king  of  France.  At  this  time  little  or  no 
commerce  was  carried  on,  either  by  the  English  or  French  ;  the 
Dutch  and  the  people  of  the  Hanse-towns,  were  the  carriers  of 
such  trade  as  these  states  could  furnish.  One  of  the  first  acts 
of  Edward,  was  to  forbid  all  trade  or  communication  whatever 
with  France,  with  the  avowed  object  of  reducing  it  by  famine  ; 
and  such  vessels,  as  were  taken  on  their  voyage  to  France,  were 
ordered  to  be  destroyed... ..Some  idea  may  be  formed  of  the 
weakness  of  France  at  th:s  period,  from  the  circumstance,  that 
the  English  possessed  above  a  third  part  of  its  then  territory, 
including  ihe  ports  of  Calais,  Cherbourg,  Brest,  Bordeaux,  and 
Bayonne. 

In  the  interval,  from  1327  to  1569,  the  French  recovered  se¬ 
veral  of  their  seaports,  and  even  a  maritime  ascendancy ;  while 
the  character  of  the  English  became  decidedly  commercial. 
The  connection  formed  between  England  and  Spain,  in  1554, 
created  a  lust  of  wealth,  that  stimulated  the  former  to  engage  in 
wars  for  its  gratification.  The  colonies  and  ships  of  Spain,  were 
plundered  in  time  of  peace,  in  the  reign  of  Elizabeth,  and  all 
trade  and  intercourse  whatever,  forbidden  with  that  country : 
in  the  port  of  Lisbon,  60  vessels  belonging  to  the  Hanse-towns, 
were  seized  and  condemned,  and  the  vessels  of  all  other  neutral 
states,  met  on  their  way  to  Spain,  were  treated  in  the  same  man¬ 
ner.  With  the  increase  of  commerce,  the  animosity  of  England 
against  France,  acquired  additional  strength  :  Elizabeth  stirred 
up  a  continental  and  a  civil  war,  to  check  the  maritime  progress 
of  that  country,  and  in  consideration  of  the  assistance  she  gave 
to  one  of  the  factions  in  France,  obtained  the  ports  of  Havre  and 
Dieppe. 

In  1604,  Henry  IV.  sent  the  duke  of  Sully  to  England,  to 
compliment  James  I.  on  his  accession  to  the  throne.  The  ves¬ 
sel  carrying  Sully,  was  met  at  sea  by  an  English  cruizer,  which 
demanded  the  salute.. ..this  was  no  sooner  refused  by  the  French, 
than  a  broadside  was  fired  into  their  vessel.  Sully  then  order¬ 
ed  the  flag  to  be  struck,  and,  when  the  English  captain  came  on 
board,  complained  of  the  outrage., ..his  answer  was,  that  he  had 


instructions  to  compel  every  foreign  vessel  he  met,  to  give  the 
honors  due  the  sovereign  of  the  seas. 

In  1625,  during  the  war  with  Spain,  Charles  I.  ordered  all 
the  French  vessels  carrying  Spanish  goods  to  be  seized.  In 
1640,  the  French,  being  at  war  with  Spain,  retaliated,  and  in 
answer  to  the  remonstrances  of  England,  pleaded  in  excuse,  the 
precedent  of  1625. 

In  1655,  Cromwell  dispatched  a  fleet,  in  time  of  peace,  to 
attack  the  Spanish  colonies  and  intercept  the  galleons:  the  Spa¬ 
nish  minister,  becoming  acquainted  with  the  circumstance,  asked 
an  explanation,  and  Cromwell  replied  that  his  object  was  to 
abolish  the  inquisition  and  compel  Spain  to  abandon  her  mono¬ 
poly.. ..the  absurdity  of  this  excuse  was  only  equalled  by  the  ini¬ 
quity  of  the  act  itself.  The  colonies  and  the  ships  of  Spain 
were  surprised  and  taken,  and  the  plunder  carried  in  triumph 
through  London. 

In  1689,  the  English  attacked  the  colonies  and  commerce  of 
France,  in  time  of  peace,  and  for  the  second  time  introduced 
the  plan  for  starving  that  country :  so  little  respect  was  enter¬ 
tained  for  the  opinion  of  the  world,  or  the  laws  of  nations,  that 
the  execution  of  this  scheme  was  formally  stipulated  and  agreed 
upon  in  a  treaty  with  Holland  ;  the  second  article  declares  : 

“  It  is  agreed,  between  his  majesty  the  king  of  Great  Bri¬ 
tain  and  the  lords  of  the  states  general,  that  if  during  the  pre¬ 
sent  war,  the  subjects  of  any  king  or  state,  shall  undertake  to 
traffic,  or  have  any  commerce  with  the  subjects  of  France ;  or, 
if  their  vessels,  laden  with  any  wares  or  merchandize  whatever, 
are  met  in  their  passage  to  France,  they  shall  be  attacked  and 
taken  by  the  men  of  war  and  privateers  of  the  contracting  par- 

I  ties,  and  condemned  as  lawful  prizes.” 

In  1701,  the  English  and  Dutch  entered  into  a  partition  treaty 
against  Spain.  In  this  they  bound  themselves  not  to  make  peace 
with  Spain,  until  security  should  be  given  that  France  should 
not  receive  any  of  the  Spanish  colonies,  or  even  carry  on  any 
commerce  whatever  with  them. 

The  16th  article  of  the  same  treaty  says:  “  it  shall  be  lawful 
for  the  king  of  Great  Britain  and  the  lords  of  the  states  gene¬ 
ral,  in  order  that  the  commerce  of  their  subjects  may  be  extend¬ 
ed,  to  seize  all  the  lands  and  cities  they  can,  in  the  Spanish 
colonies,  and  whatever  they  may  take  shall  be  their  own.” 

In  1718,  the  English  attacked  and  destroyed  in  time  of  peace, 
the  French  fisheries  on  the  coast  of  Canada,  and  plundered  the 
defenceless  towns  of  the  Spaniards  in  South  America. 

In  1720,  jealous  of  the  Ostend  East  India  company,  the 
English  intercepted  and  plundered  their  ships. ...and  in  the  same 
year  they  sailed  into  the  Baltic,  and  behaved  so  insolently,  that 
Russia  and  Austria  entered  into  an  alliance,  for  the  protection 
pf  their  trade. 


\  ■  j 

54 

In  1  "21 ,  the  Spanish  colonies  and  galleons  were  again  attack- 
ed,  during  peace. 

In  1726-7,  the  Spanish  government  complained  of  the  enor¬ 
mous  abuses  and  outrages  committed  by  British  smugglers,  on 
the  coasts  of  South  America:  and  it  asked  permission  to  search 
all  British  vessels  found  on  those  coasts  :  the  ministry  promised 
redress,  but  refused  to  permit  a  search'^. ...an  attempt  was  made 
•j-Q  restrain  the  abuses  complained  of,  but  it  cieated  such  a  clamoi 
in  England,  that  the  ministry  were  driven  into  a  war  to  sustain 
the  piracies  and  smuggling.  Some  of  the  pirates  themselves, 
that  had  been  punished  by  the  Spaniards,  were  permitted,  eveit 
before  the  house  of  commons,  to  excite  the  enmity  of  the  na¬ 
tion  in  order  to  give  a  color  to  their  depredations.  A  writer 
( examination  of  the  opposition  to  the  treaty  of  Pardo  J  noticing 
this  subject,  says....u  If  all  the  depredations  committed  by  our 
peonle  in  the  American  seas,  were  known  :  the  nation  would  be 
astonished  at  having  given  birth  to  such  a  number  of  villains, 
who  have  grossly  violated  the  most  sacred  laws  of  nations.” 

The  trade  of  the  Ostend  company  being  in  a  prosperous- 
condition,  notwithstanding  the  opposition  it  experienced  on  the 
ocean  and  in  India,  the  British  ministry  involved  Austria  in  a 
disastrous  war.  Peace  was  granted,  but  on  a  condition,  which 
proved  the  object  of  the  war....  Austria  was  compelled  to  sign- 
the  treaty  of  Vienna  of  1731,  which  stipulated,  that  “  the  com¬ 
merce  between  the  Austrian  Netherlands  and  the  East  Indies, 
should  cease  forever.” 

The  efforts  of  the  French,  to  open  an  India  trade,  were 
wholly  frustrated,  for  above  half  a  century.  It  was  not  until 
1720,’  that  they  obtained  a  settlement  at  Pondicherry,  which 
they,  with  difficulty,  preserved  in  the  war  of  1744.  Their  suc¬ 
cess,  however,  became  very  great,  alter  the  peace  of  1748,  and 
hastened  the  ruin,  which  their  envious  neighbors  were  concert  - 

As  soon  as  the  peace  of  Aix  la  Chapelle  was  concluded,  in. 
1748,  the  French  abandoned  their  marine,  and  entered  into  com¬ 
mercial  speculations  with  unprecedented  activity  \  their  tiade 
flourished,  and  in  1755,  no  less  than  25  Indiamen  sailed  from 

T’Orient . The  English,  on  the  contrary,  began  to  prepare  for 

a  new  war,  as  soon  as  that  of  1748  had  closed  ;  their  fleets  were 
putin  complete  repair  and  readiness  for  sea,  and  every  other  ar¬ 
rangement  made  for  vigorous  measures . The  object  of  such 

preparation  was  unknown,  until  the  close  of  1755,  when  the 
.French  colonies,  fisheries,  and  merchantmen  weie  suddenly  at¬ 
tacked,  in  a  moment  of  peace  and  confidence.  No  declaration 
of  war  appeared  until  1756,  but  the  English  fleets  had  sailed  in 
April,  May,  and  August,  1755.  The  consequences  were  ne¬ 
cessarily  most  fatal  to  the  brench,  above  oOO  merchantmen  vveij. 

*  See  lord  Cl^tham’s  speech  in  the  appendix: 


55 

seized,  and  between  7  and  8000  persons,  chiefly  seamen,  wzrp 
cast  into  English  prisons. 

This  perfidious  conduct  is  the  more  remarkable,  as  besides 
the  ordinary  obligations  of  justice  and  custom,  the  existing  trea¬ 
ties  required  that  a  declaration  of  war  should  precede  hostility, 
and  that  the  property  and  persons  of  either  party  should  not  be 
molested  in  the  harbors  of  the  other,  but  an  opportunity  afford¬ 
ed  to  leave  the  country  in  case  of  war.  The  French,  with  a 
magnanimity  that  has  always  placed  them  in  the  consideration 
of  mankind,  above  their  jealous  neighbors,  scrupulously  adhered 
to  the  stipulations  of  treaties,  and  to  good  faith ;  they  sent  to 
England  the  vessels  and  seamen  of  that  nation,  although  found 
in  their  ports,  even  after  they  had  learned  their  own  disasters 
and  the  detention  of  their  own  seamen. 

The  French  demanded  peace  in  1761,  and  restitution  of  their 
property  plundered  before  the  war,  but  the  British  had  the  in¬ 
decency  to  answer,  that  the  claim  for  property  seized  before  the 
war,  was  unwarranted  by  the  laws  and  practice  of  nations,  and 
that  war  commenced  on  the  first  aggression,  and  not  when  a  de¬ 
claration  appeared.  The  object  of  the  war,  and  of  this  refusal 
was  made  known  by  lord  Chatham,  who  did  not  hesitate  to  de¬ 
clare  in  the  house  of  lords,  that  u  France  should  not  obtain 
u  peace,  unless  she  signed  the  destruction  of  her  marine ;  that 
:t  it  was  enough,  if  the  coasting  trade  was  allowed  her;  and,  that 
England  should  reserve  to  itself  the  sovereignty  of  the  ocean. ” 
And,  if  further  proof  were  necessary,  it  was  given  in  the  house 
of  commons,  during  the  war  of  our  revolution. ...Mr.  Adam 
said  u  the  success  of  the  last  war  was  the  effect  of  a  bold  mea¬ 
sure  adopted  by  the  former  administration,  who,  before  war 
ivas  declared  against  France,  seized  all  her  merchant  ships,  and 
3y  taking  her  seamen  rendered  it  impossible  for  her  to  equip 
,  tier  fleets  .....a  stroke  lrom  which  that  nation  did  not  recover, 
luring  the  continuance  of  hostilities.”  Smollct ,  vol.  Ill,  p.  442, 
i  speaking  °f  ^ie  refusal  to  restore  the  plundered  property,  says, 

■  :^e  ministry  made  no  secret  of  their  issuing  the  orders  for  cap- 
>  ure  before  the  war. 

i  In  the  war  of  our  revolution,  if  the  English  did  not  fully  pur- 
r iue  ^heir  usual  policy,  it  was  because  their  resources  were  drain- 
.  id,  and  the  continental  powers,  instead  of  leaguing  with  hei\ 
..hewed  a  due  sense  of  her  shameless  disregard  of  all  rights. 
i  British  plundered  neutrals,  and  seized,  contrary  to  the 
practice  of  nations,  all  the  french  fisheries  they  could  surprize. 

.  Dn  these  points,  the  conduct  of  France  again  afforded  an  hono- 
[i  able  contrast:  instead  of  retaliating,  the  French  ministry  sent 
n  pecial  orders  to  their  cruizers,  directing  u  from  humanity,  and 
.  n  consideration  of  those  who  have  no  other  means  of  subsist¬ 
ence  than  commerce  and  fishing,  the  commanders  of  French 
essels  are  forbidden  to  disturb  or  stop  the  vessels  of  English 
isherincn  ;  and,  in  i  elation  to  neutral  trade,  France  proposed. 


56 


to  exempt  from  capture  all  merchantmen  whatever 
laden  with  innocent  goods  ;  the  English  answered,  that  Britain 
could  do  without  neutrals,  and  would  continue  to  capture  therm 

When  these  traits  in  the  character  of  both  nations  are  consi¬ 
dered  who  can  wonder  at  the  armed  neutrality  that  followed 
the  execution  of  this  threat?  And  is  it  not  a  matter  of  asto¬ 
nishment,  that  the  states  of  the  continent  did  not  again  unite 
against  England,  until  after  an  experience  of  fourteen  years 
further  perfidy,  and  contempt  of  the  rights  of  nations .  The 
opinion,  that  necessarily  follows  a  perusal  of  these  instances  of 
bad  faith,  cannot  be  better  expressed  than  m  the  language  or 
Azuni,  a  celebrated  writer  on  maritime  law : 

«  England  has  always  felicitated  herself  on  her  superiority 
at  sea  ;  but  how  shamefully  has  it  been  acquired  ;  by  the  viola¬ 
tion  of  the  sacred  principles  of  the  laws  of  nations;  by  ruining 
the  commerce  of  every  nation,  and  by  keeping  so  many  r^nci 
seamen  to  perish  in  her  prisons.  If  the  British  government 
desires  to  disturb  the  peace  of  the  world,  it  calculates  chances, 
it  watches  the  moment  when  perfect  security  induces  the  citi¬ 
zens  of  other  countries  to  engage  m  commercial  speculations 
and  to  excite  their  maritime  industry....itthen  commences  war; 
hostilities  precede  any  declaration  and  the  seamen  become  its 


’  "such,  in  fact,  is  a  faithful  picture  of  the  British  government. 
For  about  three  centuries,  it  has  had  but  one  object,  which  it 
has  now  at  length  obtained....no  commerce  but  its  own  is  safe 
on  the  ocean.  The  states  of  Europe  have  been  alternately  cor¬ 
rupted  and  betraved  by  it ;  their  substance  has  been  drained,  the 
flower  of  their  youth  cut  off,  their  growth  stunted,  and  their  in¬ 
dustry  destroyed. ...for  no  other  end  but  that  Britons  alone 
should  be  the  carriers  of  commerce,  that  Britons  alone  should 
supply  the  world  with  manufactures  !*  And,  under  what  fri¬ 
volous  pretences,  have  they  been  thus  duped  into  lum  and  dis- 

Elizabeth  pretended,  that  the  world  was  in  danger  of  being 
overwhelmed  by  the  Spanish  armada:  yet  she  drove  every 

neutral  flag  from  the  ocean.  .  ,  , 

Cromwell,  that  the  true  faith  was  m  danger.. ..yet  he  was  t 

most  faithless  of  men.  .  .  , , 

Charles  II.  that  Holland  was  avaricious....yet  he  sold  even 
thino-  he  could  acquire,  and  was  himself  a  pensioner  of  b  ranee, 
William  III.  who  was  himself  the  usurper  of  the  throne  of  hu 
wife’s  father,  and  who  iiad  fomented  a  war  in  Handers,  de- 
'  dared,  that  Europe  wanted  repose....yet  proposed  to  starv< 

Queen  Anne  and  her  successors....new  pretexts  for  every  wai 
and  all  of  them  equally  absurd. 


57' 

England  has  constantly  clamored  respecting  the  ambition  or 
usurpations  of  those,  whom  she  wished  to  weaken  and  destroy, 
but  has  never  relaxed  in  her  own  system  of  universal  monopoly, 
or  ceased  to  aggrandize  herself  by  the  enslavement  of  fifty 
millions  of  Asiatics.  She  did  not  oppose  the  usurpations  of 
Prussia,  because  the  Hanse-towns  being  the  first  victims,  a 
commercial  rival  was  removed.  She  did  not  oppose  the  at¬ 
tempts  of  Russia  to  reduce  Sweden  and  Denmark,  because 
their  ruin  would  open  the  Baltic.  She  did  not  oppose  the  dis¬ 
memberment  of  Poland,  because  as  the  price  of  her  acquies- 
cence  she  obtained  commercial  privileges  from  Russia  and 
Prussia  ;  and  she  plotted  the  dismemberment  of  France,  be¬ 
cause  by  the  extinction  of  feudal  subjection,  by  the  release  of 
the  human  faculties  from  the  heavy  weight  of  monastic,  privi¬ 
leged  orders,  and  a  jarring  and  vexatious  jurisprudence,  all  its 
natural  capacity  was  set  loose ;  and  because  even  under  all  the 
pre-existing  disadvantages,  the  force  of  nature  in  a  great  mea¬ 
sure  triumphed  over  slavish  institution,  and  its  resources  and 
genius  enabled  it  after  every  war,  to  threaten  a  rivalry  of  trade 
and  manufactures. 

No  one  can  reflect  upon  the  enormous  and  unnatural  power  of 
a  state  composed  of  but  fifteen  millions  of  people,  producing 
very  little  ol  the  materials  of  its  own  manufactures  ;  and  pretend 
that  it  is  the  result  of  their  peculiar  advantages,  spirit,  or  in¬ 
dustry.  It  is  the  necessary  effect  of  an  early  and  uniform  sys¬ 
tem....  England  has  not  engaged  in  wars  with  states,  that  have 
had  no  commerce  ;  Austria,  Prussia,  and  Russia,  have  been  her 
allies  and  the  objects  of  her  regard,  because  neither  of  them, 
could  approach  a  rivalry,  and  because  all  of  them  were  necessa¬ 
ry  to  check  the  enterprize  and  industry  of  France  and  Holland. 

It  is  as  fortunate  for  states,  as  it  is  certain,  that  the  period  ap¬ 
proaches,  when  this  proud  and  insolent  people  must  take,  among 
the  nations  of  the  earth,  that  secondary,  or  at  the  utmost  that 
equal  station,  which  alone  they  have  a  claim  to  fill.. ..an  event  that 
all  neutral  powers  must  hail  as  a  propitious  era  in  human  affairs. 

March  9,  1809. 


LETTER  XII. 

IN  my  two  last  letters,  I  presented  several  prominent  in¬ 
stances,  in  the  conduct  of  Britain,  prior  to  our  revolution,  to 
ji  shew  the  nature  and  uniformity  of  that  policy,  which  has  placed 
in  her  hands  the  monopoly  of  trade.  The  next  inquiry  that  I 
am  o  nake,  relates  to  our  own  maritime  concerns,  and  to  the 
I  proper  object  for  those  hostilities,  which  the  public  at  large  nov/ 
deem  inevitable.  I  say  the  proper  object,  since  all  parties  dr* 

H 


dare  that  we  have  more  cause  to  complain  of  one  belligerent 
than  of  the  other  ;  since  policy  and  justice  command  us  to  se¬ 
lect  that  power  which  has  injured  us  most ;  and  since  by  resist¬ 
ing  one,  we  remove  the  difficulties  in  which  we  are  placed  with 
the  other. 

As  I  propose  to  shew  that,  on  every  account,  England  is  the 
proper  object  for  our  resentment,  in  the  first  place  I  will  notice 
the  pretexts,  urged  by  its  partisans,  in  favor  of  an  opposite 
course  of  conduct. 

If,  my  friends,  we  are  to  be  guided,  in  our  relations  with 
France  and  Britain,  by  the  general  character  of  each  ;  if  we  are 
to  be  inimical  or  friendly  to  either,  in  proportion  as  it  has  re¬ 
spected  the  rights  of  neutrals,  in  former  wars,  and  our  own  in 
the  present  one  ;  if,  in  short,  we  are  to  accept  the  challenge  of 
the  advocates  of  England,  and  engage  in  war  with  tne  earliest 
aggressor.. ..why  do  not  those  advocates  lay  before  you  the  evi¬ 
dence  of  Britain’s  good  faith  and  respect  for  neutrals  ?  and 
where  are  the  proofs,  that  France  has  at  any  time  been  as  hos¬ 
tile  to  neutrals,  as  her  opponent  ?  When  those  advocates  avow 
that  the  earliest  aggressor  demands  earliest  hostility,  when  so 
important  a  point  is  at  issue,  you  may  be  assured  that  the  best 
possible  evidence  is  adduced  to  prove  that  France  should  be  the 
object  of  enmity  :  what,  then,  is  the  evidence  ?  Instead  of  class¬ 
ing  and  enumerating  the  outrages  of  both  belligerents,  they  tell 
you  that  France  is  ambitious  ;.. ..instead  of  presenting  a  faithlu* 
view  of  the  conduct  of  each,  they  tell  you,  that  the  British  navy 
is  the  bulwark  of  your  liberties ;.... they  mutilate  and  perveit 
well  known  historical  facts,  to  create  a  belief  that  1  ranee  was 
the  earliest  aggressor  ;  and  close  their  pretended  proofs  by  de¬ 
claring  that  France  guides  our  councils. 

Such  being  the  nature  and  extent  of  the  evidence  in  favor 
of  England,  there  would  seem  to  be  no  necessity  for  offering  r, 
fair  statement  of  the  case  ;  the  more  especially  as  the  subject 
has  been  so  often  noticed  :  but,  in  circumstances  of  so  much  im¬ 
portance,  there  cannot  be  too  much  discussion  ;  and  it  may  be 
Useful  to  expose  even  this  inadequate  defence. 

-If  you  had  heard  Fi  ance  reviled  only  within  a  few  years  ;  if 
the  clamor,  raised  against  that  nation,  had  originated  when  it 
had  vanquished  its  invaders  and  turned  its  energies  against 
them.. ..you  might  be  disposed  to  believe  it  sincere.  If  the 
men,  who  now  represent  the  ambition  and  power  of  France  as 
awful  and  portending  ruin  to  your  country,  had  been  the  advo¬ 
cates  of  France  in  her  distress  ;  if  they  had  condemned  the  dis¬ 
memberment  of  Poland,  and  the  coalitions  of  Pavia  and  Pilnitz 
for  the  dismemberment  of  France. ...I  would  endeavor  to  believe 
their  apprehensions  really  exist.  But,  my  iriends,  how  differ¬ 
ent  was  their  conduct :  when  France  struggled  lor  an  existence, 
when  it  had  no  ambition  but  to  u  assimilate  its  government  to 
vour  own,”  when  it  had  no  army  but  undisciplined  conscripts. 


59 


when  Bonaparte  was  an  obscure  subaltern,  and  when  France  ap¬ 
plied  to  your  country  for  flour  to  preserve  its  people  from  fa¬ 
mine  ;  the  same  faction  reviled  it,  that  reviles  it  now.. ..the  very 
men,  who  now' express  so  many  fears  for  the  freedom  of  nations, 
applauded  every  despotic  measure  undertaken  at  the  instance  of 
England.  Away,  then,  with  the  detestable  hypocrisy,  that 
would  conceal  under  an  affected  dread  of  Bonaparte,  an  inve¬ 
terate  anglo-commercial  hatred  of  France . The  advocates  of 

Britain  are  afraid  that  her  monopoly,  and  not  your  liberties, 

Iwdll  fall  before  the  energies  of  France  ;  their  Diana  is  in  danger 
and  as  faithful  votaries  they  wish  to  avert  it,  by  employing  your 
resources,  by  involving  you  in  their  contest. 

As  unfortunate  and  as  absurd  is  the  pretence  that  your  safety 
depends  upon  the  navy  of  England.  If  its  powrer  had  ever  been 
employed  to  prevent  wreak  states  from  being  ruined;  if  it  had 
interposed  to  save  Sweden,  Denmark,  or  Turkey  from  the  am¬ 
bition  of  Russia,  or  the  Hanse-towns  from  the  usurpation  of 
Prussia  ;  if  it  had  checked  the  Barbary  pirates,  or  been  employ¬ 
ed  to  prevent  the  partition  of  Poland.. ..you  might  be  induced  to 
confide  in  it.  But,  as  the  British  navy  has  never  fought,  but  in 
an  inglorious  cause,  and  as  it  has  never  ceased  to  persecute 
neutral  and  weak  states  ;  vou  must  smile  at  the  credulitv  that 
could  suppose  you  capable  of  such  folly  as  to  rest  your  hopes 
upon  such  a  basis.  The  insults  and  wrongs,  that  your  country 
Iras  sustained,  from  the  naval  pow'er  of  Britain,  have  been  too 
long  and  severely  felt,  to  create  in  your  minds  any  other  im¬ 
pressions  than  those  of  hatred  and  alarm.. ..its  tyranny  and  am- 
bitioi'.'aare  not  like  those  of  France,  in  relation  to  your  country, 
chimerical  or  a  theme  for  idle  prediction  ;  they  have  long  been, 
they  are  now,  experienced  by  every  class  in  our  community. 

Preposterous  as  those  pretexts  are,  they  are  surpassed  in  ab¬ 
surdity  by  the  insinuation,  that  France  has  an  influence  in  our 
councils.  If  the  falsity  of  it,  is  not  already  established  by  the 
long  and  abject  endurance  of  every  insult  and  injury  that  Bri¬ 
tain  could  possibly  exercise  ;  if  forbearance,  even  w'hen  the  ad¬ 
vocates  of  England  themselves  dared  not  deny  the  justice  of 
wrar,  did  not  silence  the  slander  about  French  dictation.... I  ask 
you  to  review  the  proceedings  of  the  congress,  that  has  just 
closed  its  session  ;  in  these,  you  will  find  a  humiliating  evidence* 
that,  if  any  foreign  influence  prevails  in  our  country,  it  is  that  of 
England.  When  the  measure  of  our  wrongs  was  full,  in  1 807-8, 
an  embargo  was  laid  preparatory  to  war:  but  in  1808-9,  the 
embargo  was  raised,  although  redress  was  contumeliously  re¬ 
fused. ...did  this  evince  French  influence?  As  a  substitute  for 
the  embargo  or  w  ar,  a  non-intercourse  act  was  passed,  and  what 
is  its  character?  Does  it  merely  continue  the  restraints  existing 
against  France  in  1807-8,  and  those  against  England  imposed 
subsequent  to  the  affair  of  the  Chesapeake?  Far  from  it. ...this 
act  imposes  more  oppressive  restraints  upon  France  than  those 


60 

of  1807-8,  although  no  new  cause  of  complaint  existed;  and, 
although  England  has  given  new  cause  of  complaint,  the  res¬ 
traints  of  1807-8  have  been  materially  removed  in  her  favor. 
Is  this  the  way  in  which  French  influence  would  be  exercised, 
if  it  had  an  existence  ?  Be  assured,  my  friends,  the  influence 
which  encourages  Britain  to  trample  on  our  rights  abroad,  has 
driven  your  country  from  decisive  conduct  at  home  ;  and,  that 
it  is  that  influence,  which,  under  every  administration,  has  pro¬ 
duced  lenient  measures  towards  England,  and  harsh  measures 
towards  France. 

I  have  thus  briefly,  but  perhaps  sufficiently,  noticed  the  pre¬ 
texts,  that  are  employed  to  persuade  you,  that  England  was  not 
the  earliest  or  greatest  violator  of  your  country’s  rights.  In 
my  next  letter,  I  will  expose  the  perversions,  of  historical  facts, 
that  have  been  boldly  imposed  upon  the  public  ;  and  in  the  pre¬ 
sent  one,  mqp\re....Tvhether  France  or  England  had  the  greatest 
interest  to  avoid  injuring  us ,  at  the  commencement  of  the  xvarf 

in  1793  P  . 

It  must  be  evident,  in  the  first  place,  from  a  general  view  of 
the  character  of  each  state,  that  England  considers  it  to  be  her 
interest  to  repress  or  destroy  the  commercial  efforts  of  other 
states,  and  in  this  the  destruction  of  neutral  trade. ...because 
her  views  have  for  three  centuries  been  directed  to  a  mono¬ 
poly ;  because  her  colonial  and  manufacturing  systems  render 
u  monopoly  of  trade  necessary  to  their  prosperity  ;  because  the 
extent  of  her  European  territories  render  agricultural  pursuits 
inadequate  to  her  population  and  their  demands ;  because  her 
marine  and  commerce  have  been  almost  uniformly  successful , 
•and  because  France  is  benefited  by  a  neutral  trade. 

France,  on  the  contrary,  is  interested  in  the  prosperity,  of 
general  and  neutral  commerce  ;  because  she  is  alarge  producing 
us  well  as  manufacturing  state  ;  because  her  character  ever  has 
been,  and  probably  will  long  continue  to  be,  agricultural  moie 
than  commercial ;  because  her  manufactures  and  colonies  do  not 
afford  her  an  adequate  interest,  it  would  be  impracticable  to  attain 
it ;  and  because  the  success  of  neutrals  must  weaken  England,  and 
deprive  it  of  the  means  of  annoying  not  only  France,  but  all 
commercial  states. 

'  Such  having  been  at  all  times,  the  obvious  motives  of  those 
powerful  states  ;  and  more  particularly  at  the  era  of  the  French 
revolution ;  the  state  of  our  relations  with  both  countries,  prior 
to  that  event,  merits  consideration. 

At  the  close  of  our  revolutionary  war,  the  French  had  every 
reason  to  expect,  and  every  motive  for  perpetuating,  the  most 
cordial  friendship :  the  gratitude  of  the  people  and  condition  of 
the  country,  opened  a  vast  field  for  their  enterprize,  and  they 
had  every  prospect  of  being  able  to  lay  the  foundation  of  a 
prosperous  commercial  and  manufacturing  intercourse.  But 
their  government,  either  ignorant  of  its  true  policy,  or  afraid 


61 

;>f  the  examples  of  our  free  government,  neither  exerted  itself 
:o  maintain  an  active  correspondence  with  the  country  nor  to 
:herish  a  commerce,  that  only  wanted  governmental  patronage, 
[n  tact,  France  refuted  by  her  conduct  after  the  war,  the  calum- 
nes  that  attributed  her  engaging  in  it  solely  to  interested  motives. 

1  he  conduct  of  England  was  strikingly  opposite....  when  peace 
,vas  made,  she  resorted  to  concealed  means,  bv  which  to  re- 
rieve  what  she  had  lost  in  war;  the  success  of  her  policy  in 
lestroymg  the  internal  industry  of  Portugal,  and  the  external 
.ommerce  of  Holland,  pointed  out  those  means ;  she  had  two 
>bjects  to  attain  ;....to  monopolize  the  supply  of  European  ma- 
lufactures  and  the  purchase  of  our  produce ;  and  to  acquire  a 
•ohtical  influence  in  our  councils:  1st.  To  aid  her  own  com- 
aercial  views  :  2d.  To  punish  France  for  assisting  us  in  the 

evolution:  3d.  For  annihilating  our  form  of  government  or 
ssimilatmg  it  to  its  own.  Instead  of  avoiding,  like  France 
n  intimate  connexion,  Britain  exercised  all  her  energies  to 
roduce  an  oblivion  of  the  past,  and  to  make  our  resources 
ub servient  to  her  interests.  Those  views  were  facilitated  by 
le  identity  of  language,  habits,  and  prejudices ;  by  the  influx 
r  English  books  and  newspapers  only ;  and  by  the  ability  to 
upply,  and  give  credit  for  manufactures.  Britain  also  took 
are  to  appoint  as  her  consuls,  natives  of  the  country,  who  hav- 
lg  betrayed  its  cause,  had  the  local  knowlege,  the  ability,  and 
iciinationto  perform  all  the  services  required  of  them. 

Such  was  the  state  of  the  relations,  or  rather  of  the  views  of 
ranee  and  England,  in  the  year  1789,  when  the  revolution 
immenced.  Prance  held  no  influence  in  these  states,  but  the 
'atitude  of  the  people  ;  it  had  no  advantages  but  those  of  trea- 
es,  granted,  as  tokens  ol  that  gratitude,  during  our  revolu- 
|on.  England  held  a  great  commercial  influence  ;  the  duties 
o  importation  of  foreign  goods  being  artfully  appropriated  for 
fe  payment  ol  the  public  debt,  its  holders  were  the  friends  of 
1  at  country,  which  could  supply  the  greatest  quantity  and  on 
e  readiest  terms  ;  and  the  great  body  of  the  merchants  were 
iritish  parti zans  for  the  same  reasons. 

If,  my  friend5,  the  French,  in  1792,  were  powerful  by  land  and 
a ;  if  their  finances  were  prosperous  and  their  trade  flourishing  • 
e>  might  have  disregarded  the  advantages  of  the  friendship  of 
merica :  but,  impoverished  at  home,  and  vanquished  abroad 
ithout  a  single  advocate  or  friend  in  Europe.... what  must  have 
en,  what  was  their  obvious  interest,  in  relation  to  America? 
as  it  to  retain  her  friendship,  or  to  add  her  to  the  long  list  of 
emies .  Did  not  every  motive  of  prudence  and  policy  de- 
,  ’  an  abandonment  ol  the  conduct  pursued  by  Louis  XVI 
d  every  exertion  to  retain  the  good  will  of  this  country  ?  If 

Hey"  Sr“'  uaS  eeidentIy  tHe  °nl>'  correct 

uc>  its  necessity  was  evinced  by  the  nature  of  the  stipula- 
is  of  existing  treaties.  By  the  treaty  of  1778,  America 


guaranteed  to  France  her  American  possessions ;  and  by  the 
same  treaty,  French  ships  of  war  and  privateers  possessed  an 
exclusive  privilege  of  carrying  their  prizes  into  American  ports  ; 
these  and  other  important  advantages  possessed  by  France, _  a, 
a  time  when  their  value  was  inestimable,  made  it  the  first  wish 
and  best  interest  of  that  nation  to  maintain  the  closest  friends  ip 
with  these  states,  and  respect  for  their  rights.  And  as  if  t  e 
ties  of  reciprocal  good  will  were  not  already  sufficiently  strong, 
France  had  scarcely  declared  her  independence,  when  she  open¬ 
ed  the  ports  of  the  mother  country  and  of  the  co.onies,  to 
American  vessels,  and  placed  them  as  to  duties  on  a  looting 

V ' 'ondie  Cother  hand,  the  motives  that  induced  Britain  to  en¬ 
gage  in  the  coalition  against  France,  rendered  the  reduction  of 
America  an  object  of  her  ardent  desire  and  expectation :  the 
stinulations  of  our  treaty  with  France,  the  advantages  that  out 
friendship  offered  that  nation,  the  similarity  of  condition  as  tc 
free  government,  the  benefits  of  a  neutral  trade  to  France,  all 
combined  to  induce  Britain  to  involve  us  in  war  on  her  side 
or  to  render  our  neutrality  useless  to  ourselves  01  Fiance 
England  was  interested,  besides,  in  our  injury,  because  we  had 
after  conquering  her  on  land,  advanced  to  a  commercial  rivalry 
As  no  treaty  existed,  to  be  a  bar  to  her  encroachments,  she  die 

not  hesitate  to  put  in  force  her  insidious  intentions,  and  to 
tack  France  through  an  inoffensive  neutral ;  possessing  a  t  as 
influence  in  our  councils  and  holding  us  -  tnbutanes  rathe 
than  customers  for  her  manufactures,  she  did  not  peimit  hei  se 
to  anticipate  any  resistance  on  our  part... .and  her  prediction 

have  been  but  too  faithfully  realized.  _ 

Such,  my  friends,  were  the  respective  conditions  and  inte 

rests  of  France  and  England  ;  and,  you  will  find  m  their  cor 
duct  the  most  ample  evidence  of  the  correctness  of  my  dei 

cription. 

March  16,  1809. 


letter  xiii. 

I  TRUST,  mv  friends,  that  in  my  last  letter,  I  proved  : 
vour  satisfaction,  that,  in  1792,  France  was  materially  mt 
rested  and  anxious  for  the  welfare  of  neutrals,  and  particular 
of  America.. ..since  the  preservation  of  her  people  from  fam 
depended  upon  neutral  supplies,  ana  since  her ^treaty  w‘ 

-  in  guaranteed  orivileges  essential  to  her  safety  and  commert 
It  must  have  been  equally  evident,  that  England  was  in 
rested  in  the  suppression  of  American  neutrality  in  paiticul 


6: 


CS 

O 


for  the  very  reasons  that  made  it  the  wish  of  France  to  resnec, 
3ur  neutrality.  ^  * 

If  any  doubt  yet  remains  on  your  minds,  that  this  was  the 
ase,  I  will  remove  it,  by  informing  you,  that,  France  propos¬ 
'd.1"  a  forma  manner  to  the  court  of  Londbn,  to  respect  neu¬ 
ral  flags  in  all  cases  but  those  of  contraband  and  actual  blockade 
md  that  the  proposal  was  indignantly  refused.*  The  evidence’ 
hat  I  have  yet  to  lay  before  you,  will  be  equally  emphatic. 

I  now  proceed  to  the  question 
JJ  as  France  or  England  the  first  aggressor  ? 

You  are  to  bear  in  mind  that,  the  advocates  of  Britain,  avow 
lat  the  first  aggressor  is  the  proper  object  for  resentment :  and 
?at,  relymg  upon  your  supposed  ignorance,  they  pretend  that 
ranee  was  the  first  aggressor,  and  demand  war  against  that 
ation.  You  are  also  to  remark  the  manner  in  which  this  avowal 
made,  and  the  evidence  that  is  adduced  to  prove  France  the 
rst  aggressor.  Passing  unnoticed  the  host  of  hireling  printers 
take  the  highest  authority  in  these  states,  in  the  estimation  of 
ngland  s  fnends,  the  Essexjunto.  In  their  late  official  report 
the  legislature  of  Massachusetts  a  war  is  recommended  against 
ranee,  because,  as  they  say,  it  was  the  first  aggressor,  and 
eu  proof  is  this.. ..“  The  French  authorised  the  capture  of 
;utrals,  laden  with  neutral  provisions,  but  bound  to  enemy’s 

’i  t5,  °n  tks  9th  of  May,  1793,  one  month  prior  to  the  British 
•cree  for  the  same  purpose.” 

V,ere’  >'°11  are  told>  that  the  first  French  aggression  was 
i  the  9th  May,  1793.  Now,  if  it  shall  be  shewn  that  Britain 
d  aggressed  prior  to  that  date,  and  that  the  French  decree  of 
ay,  1 793,  was  a  retaliation  for  an  earlier  act  of  Britain  (and 
the  way  the  Essex  junto  assert  that  retaliation  cannot  be  com¬ 
muned  of)  It  must  follow,  according  to  the  position  of  the  British 
vocates,  that,  as  soon  as  congress  shall  meet  in  its  next  ses- 

I"’’  K  shoukl  declare  war  against  England.  This  will  be  the 
Ijiious  conclusion,  and  the  necessary  course  of  proceeding. 

That  I  may  establish  the  point,  beyond  the  possibility  of 
lubt  or  misconception,  I  ask  your  attention  in  the  first  place 

The  French  government  made  every  exertion,  in  1792-3  to  induce  , 

emu,,,  neutral  In  one  of  the  letters  of  M.  Cluu^velin  tol^d  G  i  e  d- 

■  2o,  1 79o,  the  following  remarkable  proposal  was  maile-  it  is  scare, -h- 

To'.'-ive  to  the  nd '7S  ha,,gli*i-1>  re-iccUd  b7  the  British  ministry:  '  '  ' 

t,  c  to  tl.c  naMg-ation,  maritime  commerce.  and  c-oods  of  individual^ 

lenud  consent  of  the*  -hich  the  law?  of„°aU^d^ 

Llividual  o,  ran-  i  m,pC’  S',Ve  to  the  intercourse  and  prope  l, 

'  a  U  c  nt.we h  o^state  UP|,’;CSS;  *"  *  that  Pe™i«»us  custom,  which 

ar/merwurse  £0,  !mnce!’  ."irrupts  in  every  sea,  the  most  no- 
siranveas  m  iholr  ,  '  Tcu  at‘ons,  on  "Inch  the  existence  of  pen. 

■  man  di  '  m  e,'  0  ten  depends  ;  which  suspends  the  progress 

riu'  "  ;  ,whlch  ,anus individuals  against  each  other  ,  deliver?  , he 

1  merchant  to  pillage,  and  devotes  to  death  the  marin, 

Hce  to  his  Britannic  niriesl  “  ''1"‘  !lon,;r!l'de  ol.5^+  oftl.e  proposition 


to  a  brief  review  of  events,  the  greater  number  of  which  oc. 
curred  prior  to  May,  1793.  The  question  is  not  dependent 
upon  reasoning ;  it  rests  upon  a  train  of  facts,  collected  rom 
English  as  well  as  American  state  papers, _  all  connected  with 
the  subject,  and  giving  force  to  the  discussion  that  will  o  or - 
Fifteen  years  ago,  such  a  review  would  have  been  unnecessary, 
but  many  of  you  have  since  that  time,  by  years  reached  the 
class  of' citizens,  should  learn  to  be  able  to  decide  in  polit.ca 
questions,  and  should  therefore  have  every  information. 

1  On  the  6th  June,  1789,  the  French  revolution  commenced. 
In  Tuly  and  August,  1792,  the  conventions  of  Pavia  and  rn- 
nitz  were  signed :  their  objects  were  not  merely  the  overthrow 
of  a  free  government  in  France  ;  they  extended  to  the  partition 
of  two  thirds  of  France  and  all  her  colonies,  to  the  suppression 
of  the  electoral  states  of  the  German  empire,  particular^  a- 
varia,  and  to  the  final  dismemberment  of  Poland. 

Austria,  Prussia,  Sweden,  Spain,  and  Naples  signed  tins  con¬ 
vention  in  1792,  and  between  August,  1,9-,  and  ’ 

Russia,  Holland,  Portugal,  and  England  acceded.  Thus  all  h 
great  states  of  Europe,  nearly  all  its  physical  force,  comomed 
against  France  singly.  But  this  did  not  satisfy  the  coalition, 
itwas  determined  in  order  to  conquer  France,  that  there  should 
be  no  neutrals  ;  and  in  this  measure  England  embarked  with  the 
Greatest  vigor,  bullying  such  states  as  could  not  be  purchased, 
and  making  the  determination  of  the  coalition  subservienc  tc 

lielIn  April,  1793,  England  agreed  to  pay  Sardinia  100,000  dol 
lars  per  annum,  for  entering  into  the  war.  In  the  same  year 
it  agreed  to  pay  annually  to  the  elector  of  Hesse  Cassel  — o,00 
crowns,  and  to  keep  in  pay  8000  Hessian  troops  besides.  I, 
the  same  year,  it  agreed  to  subsidize  Hesse  Darmstadt  am 

Baden,  in  the  same  manner.  ,  r  y* 

The  only  states  that  remained  neutral,  therefore,  \vere 
mark,  Switzerland,  Genoa,  Venice,  Tuscany,  and  America... 
the  means  taken  to  involve  them  in  a  war  are  now  to  be  noticed 
Russia,  Prussia,  and  Austria,  m  1792,  demanded  that  Dec 
mark  should  abandon  its  neutrality ;  the  answer  given  was,  hi 
Danish  majesty  cannot  join  the  concert  of  powers,  mconformit 
with  the  rules  of  government,  which  are  proper  ioi  him. 

Upon  the  death  of  Gustavus  III.  in  1792,  Sweden  abandon# 
the  coalition.  A  demand  was  therefore  made,  that  it  shou 
again  become  a  party:  the  regent  answered  m  May,  1/9. 
“  Sweden  is  resolved  invariably  to  maintain,  during  the  exis 
ing  war,  a  strict  neutrality,  towards  the  coalesced  powers  as  w< 

JS  In  November^  1793,  the  British  minister,  Fitzgerald,  call' 
upon  and  required  Switzerland  to  join  the  confederacy  ;  it  a 
swered,  “  accustomed  to  observe  our  treaties,  we  cannot  depa 

under  anv  pretext,  from  the  neutrality  we  have  declared.  . 


65 


In  1793,  the  British  minister,  Drake,  announced  to  Genoa, 
that  “  in  the  present  war,  against  the  usurpers  of  power  in 
France,  no  government  can  declare  itself  neutral  zvithout  becom¬ 
ing  an  accomplice Genoa  refusing  to  join  the  coalition,  a 
British  man  of  war  entered  its  port,  attacked  therein  a  French 
ship,  and  killed  above  40  of  its  men.  France  announced,  that 
notwithstanding  this  event,  it  w'ould  respect  the  neutrality  of 

Genoa,  knowing  that  it  could  not  have  prevented  this  British 
outrage  upon  its  rights.  ^ 

To  a  demand  of  the  same  kind  made  by  England,  in  Septem- 
ber,  1792,  Venice  declared  it  would  remain  neutral,  “  since  it 
could  add  no  weight  to  the  coalition,  and  by  a  war  would  run 
the  risk  of  propagating  (what  in  complacence  to  England  it  cal- 
ied)  the  pernicious  principles  of  Gallic  madness.” 

The  British  minister  at  Florence,  lord  Hervey,  informed  the 
grand  duke  of  Tuscany  that  his  neutrality  would  not  be  allow- 
,  ’  lon&e_r  than  hls  aid  was  unnecessary:  the  French  ambassa¬ 
dor,  La  Flotte,  was  driven  out  of  Florence  shortly  after  upon 
peremptory  demand  of  the  British  ambassador,  and  in  October 
1793,  Tuscany  was  forced  to  declare  tvar.  7 

There  is  every  reason  to  believe,  that  the  British  minister 
Hammond,  applied  to  our  government,  to  abandon  its  treaty 
with  trance  ;  the  answer  is  unknown,  but  although  neatralit- 
was  avowed,  the  measures  of  our  government  for  a  time  directly 

favored  the  views  of  the  coalition . as  I  shall  endeavor  to  shew 

ne  re  alter. 

.  1  have  given  this  view  to  shew  you,  my  friends,  the  systema¬ 
tic  measures  taken,  particularly  by  England,  to  drive  every  state 
\rotn  neutrality,  in  order  to  famish  and  conquer  France,  Ii  i& 
mportant  that  this  object  and  the  means  taken  to  attain  it  should 
,c  remembered.  It  is  now  to  be  shewn,  in  what  way  the  coalition 
lowers  were  determined  to  destroy  the  commerce  of  such  states' 
is  by  their  neutrality  could  benefit  themselves  or  aid  France’ 

In .November,  1792,  three  months  before  the  declaration  of 
var  by  France,  the  English  ministry  directed  the  detention  of 
dl  vessels,  in  the  ports  ot  Britain  and  bound  for  France  with 

irovisions.... including  in  their  order  as  well  French  vessels  a- 
hose  of  neutrals.  * 


In  January,  1 793,  the  Prussians  took  possession  of  the  Hanse  - 
owns  :  French  and  neutral  vessels,  to  escape  seizure,  left  the 
.orts,  but  had  scarcely  reached  the  sea,  when  they  were  detain- 
d  and  sent  into  England. 

These  violations  of  the  laws  of  nations,  of  treaties,  and  of 
■eutra  rights,  were  committed,  when  England  was  in  a  declar- 
d  state  of  neutrality  and  peace  with  France  ;  and  whilst  a 
■rench  minister  was  in  London,  begging  the  ministry  to  rc- 

cen  e  .peace,,andtoPermitthe  exportation  of  provisions  to 

-ere  t  lr?m  So  atrocious,  indeed, 

these  act..-,  that  the  British  ministry  were  compelled 


to  take  refuge  under  an  act  of  indemnity,  passed  in  June,. 
1793  to  escape  impeachment  and  punishment.  Alludm& 
those  outrages,  in  a  debate  in  the  house  of  commons,  January, 

1 793,  Charfes  Fox  said,  “  the  prohibition  to  allow  the  exPort^ 
tion  of  provisions  to  France,  whilst  they  are  allowed  to  be  ex¬ 
ported  to  any  other  country,  is  an  act  of  hostility  so  severe,  as  can 
have  no  excuse  or  justification  but  m  hostile  acts  of  France,  a 
it  is  not  even  pretended  that  such  hostile  acts  have  taken  place. 

The  British  annual  Register,  for  1793-4-5,  declares  tha  ,  l 
was  the  object  of  the  English  ministry',  to  compel  all  neutia 
states  to  join  in  the  war  against  France  ;  and  that  the  order* 
against  commerce  had  that  object  principally  in  view. 

You  will  remark,  that  England  had  a  stable,  permanent  go- 
verment,  and  ample  resources,  whilst  France  was  in  a  state  ot 
anarchy,  and  had  as  many  rulers,  as  there  were  months,  in  the 
first  years  of  her  revolution.  On  the  acts  of  the  one,  therefore, 
we  can  look  with  no  indulgence  ;  whilst  it  should  excite  no  sur¬ 
prize  if  there  were  causes  to  complain  of  the  othei.  these 
considerations  among  others,  exhibit  a  striking  contrast  infavo, 
of  France ,  when  it  is  known  that  the  aggressors  against  her 
were  also  the  earliest  aggressors  against  neutrals. 

I  will  now  lay  before  you,  further  evidence,  that  England., 
whilst  in  peace,  plotted  the'  destruction  of  neutral  commerce.  In 
September  1792,  the  British  minister  in  Russia,  agreed  uith 
the  ministry  of  that  power,  upon  a  treaty  binding  the  contract¬ 
ing  parties  to  interrupt  neutral  commerce  with  France thi. 
treaty  was  formalin  ratified  nearly  two  montns  prior  to  the  French 
decree  which  is  said  by  the  servile  supporters  and  retainers  ot 
England,  to  be  the  first’act  of  aggression;  similar  treaties  were 
made  with  other  powers ;  and  as  extracts  from  them  will  be 

satisfactory  I  subjoin  them . The  opposite  column  contains  the 

French  decree  of  May,  1793,  which,  if  no  other  evidence  ex¬ 
isted,  would  be  sufficient  to  prove  that  it  was  an  act  oj  retalia- 

lion  only* 


EXTRACT, 


JYovi  a  convention ,  between  his  Britannic 
majesty  and  the  empress  oj  Bussia, 
definitively  signed  at  London ,  March 
25,  1793. 

Art.  III.  Their  said  majesties,  reci¬ 
procally  engage  to  shut  all  their  ports, 
against  French  ships,  not  to  permit  the 
exportation,  in  any  ease,  from  their  said 
ports,  for  France,  of  any  military  or  na¬ 
val  stores,  or  com,  grain,  salt  meat,  or 
other  provisions  ;  and  to  take  all  other 
means  in  their  power  for  injuring  the 
commerce  of  France,  and  for  bringing 


First  French  decree ,  of  May  9,  1793. 

“  The  national  convention,  after 
having  heard  the  report  of  their  ma¬ 
rine  committees,  considering  that  thf 
flag  of  neutral  powers  is  not  respectec 
by  the  enemies  of  France  j  that  t\v< 
cargoes  of  flour,  arrived  at  Falmouth 
in  American  vessels,  and  purchase! 
before  the  war  for  the  service  of  th< 
marine  of  France,  have  been  detaine< 
in  England,  by  the  government,  wh 
would  not  pay  for  them,  except  at 
price  below  that  at  which  flour  ha1 

been  sold.  J 

“  That  the  ship  John,  capt.  Sheet 


*  Set  Appendix....C.> 


Iier  by  such  means,  to  just  conditions 
of  peace. 

Art.  IV.  Their  majesties  engage  to 
finite  all  their  efforts  to  prevent  other 
powers,  not  implicated  in  this  war, 
from  giving  on  this  occasion,  of  com¬ 
mon  concern  to  all  civilized  states,  any 
protection  whatever,  directly  01  iudi- 
rectly,  in  consequence  of  their  neutra¬ 
lity,  to  the  commerce  or  property  ol  the 
French,  on  the  sea  or  in  the  ports  or 
France. 


EXTRACT, 

From  a  treaty ,  between  Jus  Britannic 
majesty  and  the  king  of  Spain,  signed 
at  Aranjuez,  May  25,  l/9o. 

Art.  IV.  (Precisely  the  same  as  ar¬ 
ticle  III.  in  the  above.) 

Art-  V.  Their  majesties  also  en¬ 
gage,  the  present  war  being  generally 
interesting  to  every  civilized  state,  to 
unite  all  their  efforts,  in  order  to  pre¬ 
vent  those  powers,  which  do  not  take 
part  in  said  war,  from  affording,  in 
consequence  of  their  neutrality,  any 
protection,  direct  or  indirect,  on  the 
sea  or  in  the  ports  of  France,  to  the 
commerce  or  property  of  the  French. 


On  the  30  th  of  August,  1793,  a  trea¬ 
ty,  containing' the  like  stipulations,  was 
signed  in  London,  by  the  ministeis  of 
England  and  Austria.  And  on  the 
14th  of  July,  1793,  another  treaty,  of 
the  like  character,  was  signed  between 
England  and  Prussia. 

O 


The  British  ministry  acted  upon 
Ihe  above  treaties,  as  I  have  before 
shewn,  prior  to  their  war  with  France  ; 
it  was  not,  however,  until  the  8th  of 
June,  that  their  specific  orders  appear¬ 
ed  ;  these  instructed  the  men  of  war 
and  privateers,  to  intercept  all  trade 
whatever  with  France ;  and  for  the 
first  time,  declared,  that  the  notifica¬ 
tion  in  a  neutral  country,  of  a  blockade 
of  an  enemy’s  port,  subjected  the  ves¬ 
sel  of  that  neutral  state  to  capture,  if 
found  on  the  sea,  proceeding  to  such 
port,  although  there  should  be  no  ac¬ 
tual  blockade. 


ley,  laden  with  near  6000  kentals  61 
American  wheat,  bound  from  F almouth 
to  St.  Malo,  has  been  taken  by  an  Eng¬ 
lish  frigate,  and  sent  into  Guernsey, 
where  the  agents  of  government  have 
simply  promised  to  pay  the  value  of 
the  cargo,  because  it  was  not  on  ac¬ 
count  of  the  French. 

(Other  instances  stated,  are  here 
omitted.) 

“  That  the  divers  reports,  which  are 
successively  made  by  the  maritime  ci¬ 
ties  of  the  republic,  announce  that  si 
milar  acts  of  inhumanity  and  injustice, 
are  daily  multiplied  and  repeated  with 
impunity  throughout  the  seas. 

“  That  under  such  circumstances, 
all  the  rights  of  nations  being  violated, 
the  French  people  are  no  longer  per¬ 
mitted  to  fulfil,  towards  the  neutral 
powers  in  general,  the  vows  which 
they  have  so  often  manifested,  and 
which  they  will  constantly  make,  for 
the  full  and  entire  liberty  of  commerce 
and  navigation  ;  decree  as  follows: 

«  Art.  I.  The  French  ships  of  war 
and  privateers,  may  arrest  and  bring 
into  the  ports  of  the  republic,  the  neu¬ 
tral  vessels  which  shall  be  laden, 
wholly  or  in  part,  either  with  provi* 
sions  belonging  to  neutral  nations,  and 
destined  for  an  enemy’s  port,  or  with 
merchandize  belonging  to  an  enemy. 

«  II.  Merchandize  of  an  enemy  shall 
be  confiscated  to  the  profit  of  the  cap- 
tors  ;  provisions  belonging  to  a  neutral, 
and  bound  to  an  enemy’s  port,  shall  be 
paid  for  according  to  their  value,  in 
the  place  to  which  they  were  destined. 

“  III.  Neutral  vessels  shall  be  releas¬ 
ed,  as  soon  as  the  unlading  shall  be 
effected.  The  freight  stipulated,  by 
the  shipper,  shall  be  paid;  and  just 
indemnification  shall  be  allowed,  in 
proportion  to  their  detention. 

“  IV.  An  inventory  of  such  cargoes 
shall  be  sent  to  the  minister  of  marine, 
and  another  to  the  minister  for  foreign 
affairs 

“  V.  The  present  decree,  applicable 
to  all  prizes  taken  since  the  declaration 
of  war,  shall  cease  to  have  effect,  a* 
soon  as  the  enemy  powers  shall  have 
declared  free  and  not  seizable,  al¬ 
though  destined  for  ports  of  the  re¬ 
public,  the  articles  of  provisions,  be¬ 
longing  to  neutral  nations,  and  cncm\  $ 
property  laden  in  neutral  ships.” 


You  will  perceive,  my  friends,  from  this  contrast,  that  bng 
land  was  the  first  violator  of  neutral  rights  ;  but,  lest  it  should 
he  pretended  that  the  treaties  above  mentioned  did  not  jrp 


68 

far  as  the  French  decree,  it  may  be  well  to  inform  you,  that* 
immediately  after  the  publication  of  the  British  order  of  June 
8,  1793,  of  which  you  will  find  a  minute  in  the  above,  our  minis¬ 
ter  in  London,  Mr.  T.  Pinckney,  had  a  conference  with  the  Bri¬ 
tish  minister  lord  Grenville  :  he  complained  ©f  the  violation  of 
our  rights,  and  asked  if  Spain  would  pursue  the  same  course  as 
England,  since  the  treaties  (as  above  quoted)  did  not  go  so  far 
as  the  order  of  June,  1793  lord  Grenville  replied... .that 
though  it  was  not  expressly  mentioned ,  it  was  fully  understood 
by  both  parties  (to  the  above  treaties)  to  be  within  their  intention , 
to  capture  all  neutral  vessels  laden  with  provisions  and  bound  to 
France P 

Having  thus  established,  from  the  nature  of  the  case  and  offi¬ 
cial  documents,  that  England  was  the  earliest  aggressor,  and  that 
what  the  advocates  of  England  call  the  first  act  of  French  aggres¬ 
sion,  was  an  act  of  retaliation  only  ;  I  propose  to  inquire  whe¬ 
ther  our  own  government ,  under  the  Washington  administration 
in  particular ,  did  not  consider  England  as  the  earliest  and  great¬ 
est  aggressor  ?  The  evidence  on  this  point  must  be  conclusive, 
since  the  principal  authorities  are  the  leaders  of  the  federal  party , 
The  correspondence  of  our  minister  at  Paris,  Mr.  Gouver - 
Tieur  Morris ,  with  the  Washington  administration,  in  1793-4, 
proves  that  France  was  anxious  to  repeal  her  decree  of  May, 
1793,  in  order  to  preserve  her  alliance  with  America;  that  the 
French  government  uniformly  expressed  the  warmest  wishes 
for  ©ur  welfare ;  that,  it  at  no  time  intimated  even  a  wish  for 
any  aid  from  us  but  such  as  our  neutrality  permitted  us  to  afford  ; 
and  in  one  of  his  dispatches,  Mr.  Morris  declares  that  the 
French  decree  of  1793,  originated  in  the  measures  of  Britain, 
The 'correspondence  of  our  minister  in  London,  Mr.  Thomas 
Pinckney ,  in  1793-4,  proves,  that  the  English  considered  them¬ 
selves  pledged  by  the  treaties  with  Russia,  &c.  of  March,  1793, 
to  intercept  all  neutral  trade  with  France  ;  that  they  did  not,  at 
any  time,  pretend  to  justify  their  measures  by  the  plea  of  reta¬ 
liation ,  but,  on  the  contrary,  that  they  declared  their  right  thus 
to  interrupt  all  communication  with  rebellious  France. 

Almost  the  whole  correspondence  of  our  government  with  the 
English  minister  in  this  country,  consisted  of  complaints  against 
his  government,,,, whilst  the  correspondence  with  the  French 
minister  consisted  of  answers  to  complaints  against  usy  made  by 
France,  Can  the  contrast  be  mistaken? 

The  proceedings  of  our  citizens  and  of  congress  further  shew 
the  sense  of  the  country: 

On  the  27th  March,  1794,  Mr.  Jonathan  Dayton  laid  on  the 
table  of  the  house  of  representatives  of  the  United  States,  two 
resolutions.. ..the  first,  for  the  sequestration  of  all  debts  due  b) 
the  American  citizens  to  British  subjects,  the  second,  for  appro¬ 
priating  such  debts  to  the  relief  of  those,  whose  vessels  had 
been  plundered  by  British  cruizers. 


69 

On  the  7th  April,  1794,  Mr.  Clarke  laid  a  resolution  cn  the 
table  of  the  house  of  representatives  U.  S.  for  suspending  all 
commercial  intercourse  between  the  United  States  and  Great 
Britain. 

Mr.  Sedgzvick,  in  answer  to  the  resolution  of  Mr.  Clarke, 
said,  that  he  hoped  negociation  with  England  would  precede 
war,  and  if  that  failed  to  secure  justice,  u  we  must  seek  redress 
by  the  means  God  and  nature  has  given  us.”  Mr.  Sedgwick 
at  the  same  time  proposed  to  raise  an  army  of  25,000  men. 

The  president,  Washington ,  in  his  message  to  congress,  April, 

1794,  said,  “  the  communications  I  have  made  to  you  in  the 
present  session,  from  the  dispatches  of  our  ministers  in  Lon- 
don,  contain  a  serious  aspect  of  our  affairs  with  Great  Britain.” 

In  the  same  session,  an  embargo  zvas  laid,  and  in  May,  1 794. 
the  people  of  Boston ,  in  regular  town  meeting,  besought  con¬ 
gress  not  to  repeal  it. 

In  the  debates  of  congress,  and  the  resolutions  of  the  people , 
Britain  was  constantly  proclaimedto  be  the  first  aggressor :  against 
her  alone,  hostile  measures  were  preparing;  and,  against  France 
no  complaints  were  heard  but  amongst  the  agents  of  her  enemy. 
That  the  matter  may  be  put  out  of  doubt,  read  the  following 
extracts  from  the  dispatches  of  the  Washington  administration 
to  our  minister  in  France:  a  letter  of  June  10,  1794,  says: 

“  There  is  reason  to  believe,  that  the  embargo ,  when  it  was 
first  laid,  excited  uneasy  sensations  in  the  breast  of  the  French 
minister.  But,  you  know  enough  of  the  history  of  this  busi¬ 
ness,  to  declare,  that,  it  zvas  levelled  at  Great  Br  itain ,  and  was 
made  general,  merely  because  if  made  partial  against  her,  it 
would  have  amounted  to  a  cause  of  war  ;  and  that  the  embargo 
was  repealed  because  it  zvas  reputed  injurious  to  France .” 

Can  any  thing  be  stronger  than  this?  If  France  was  the  first 
aggressor,  why  did  Washington  say  this?  Great  Britain  must 
have  been  a  grievous  aggressor  indeed  to  have  received  such 
treatment.  But  1  have  yet  to  call  Mr.  Timothy  Pickering  be* 
fore  you:  in  a  letter  to  our  minister  in  France,  dated  Sept.  12 

1795,  Mr.  Pickering  said  : 

“  The  government  of  the  United  States  is  sincerely  friendly 
to  the  French  nation:  the  latter  doubtless  believes,  that  the 
great  body  of  the  people  are  friendly  towards  them. ...the  belief 
is  well  founded,  and  it  is  equally  well  founded  as  to  those  who 
administer  the  government.” 

If  France  was  the  first  aggressor,  Mr.  Pickering  was  but 
too  zealous  in  the  cause  of  Britain,  notwithstanding  those  pro¬ 
fessions,  not  to  complain,  if  there  were  cause.  The  truth  is, 
war  was  proposed  against  England  alone:  a  minister  was  sent 
to.  demand  redress  from  England  and  not  from  France.  All 
-his  was  done  by  the  Washington  administration.. ..and  what 
Joes  it  pr^ve  ? 


70 

I  flatter  myself,  that  1  have  thus  established  the  point  in  con¬ 
troversy  :  the  proofs  that  I  have  laid  before  you  form  but  a  por¬ 
tion  of  those  which  are  applicable  and  incontrovertible.  If  there  is 
any  advocate  of  England,  who  imagines  he  can  disprove  a  syl¬ 
lable  of  what  I  have  said,  I  ask  him  to  attempt  it:  the  cause 
of  that  faction  is  interested,  and  therefore  silence  must  be  attri?i 
buted  to  inability.  I  agree  to  the  justice  of  the  position  that  it 
we  should  go  to"  war  with  the  first  aggressor,  it  should  be  with 
Britain  who  was  the  first  aggressor  ;  and  the  sooner  war  shall  be 
declared  againsther,  the  more  safe  and  honorable  for  this  country. 

larch  21,  1809- 


LETTER  XIV. 

I  FLATTER  myself,  that,  in  my  last  letter,  1  proved, 
that  Britain  was  the  first  violator  of  neutral  rights,  and  that,  in 
following  her  pernicious  example,  France  has  constantly  excus¬ 
ed  herself,  upon  the  pleas  of  necessity  .and  retaliation :  these 
excuses  I  am  unwilling  to  consider  as  any  justification  of  France; 
but,  as  the  advocates  of  England  place  great  reliance  upon  them, 
their  force  cannot  be  abridged  by  the  change,  and  if  they  justi¬ 
fy  England  they  afford  equal  protection  to  France. 

'  This  point  being  settled,  the  next  inquiry  that  presents  itself 
is,  whether  England  or  France  has  been  the  greatest  aggressor. 
This  is  a  question,  which  the  friends  of  the  former  have  very 
wisely  shunned ;  they  tell  you,  that  it  is  immaterial  what  were 
the  consequences,  since  every  thing  depends  upon  the  pnonty 
of  aggression.  But  should  it  appear,  that,  besides  being  the 
earliest,  Britain  has  been  infinitely  the  greatest  aggressor,  it  wil 
be  a  point  of  much  importance  in  this  discussion,  and  it  will  in¬ 
crease  the  necessity  for  singling  out  that  nation  for  hostilities. 

As  it  would  be  impracticable  to  state  all  the  acts  of  depreda¬ 
tion  and  insult,  that  this  country  has  tamely  suffered,  for  sixteer 
vears,  or  to  give  any  thing  like  a  mercantile  account  betweei 
the  outrages  of  the  belligerents  ;  I  must  confine  myself  to  ai 
.epitome  of  all  the  orders,  decrees,  &c.  under  which  neutra 
commerce  has  been  abused  and  ultimately  swept  from  the  ocean 
'This  view  will  shew  the  progress  in  usurpation  and  injury,  anc 
the  relative  character  of  each  belligerent.  I  have  endeavorec 
to  give  a  correct  analysis  of  all  these  acts  ;  and  if  that  of  the  lati 
orders  of  council  is  hot  entirely  so,  or  as  complete  as  it  migh 
be,  it  arises  from  the  impracticability  of  confining  in  so  small j 
space,  the  features  of  such  extensive  and  complicated  docu 
ments.  Such  remarks,  as  offer  themselves  on  perusing  tht 
epitome,  shall  follow  it.  * 


71 


BRITISH  ORDERS,  Sec— No.  1. 

The  treaty  ratified  in  March,  1793, 
by  England  and  Russia,  and  adopted 
in  the  same  year,  by  Spain,  Austria, 
and  Prussia,  binds  the  contracting  par¬ 
ties  to  prevent  all  neutral  trade  with 
France. 

No.  2  —June  8,  1793. 

Directs  the  seizure  and  condemna¬ 
tion  of  neutral  vessels,  laden  with  neu¬ 
tral  provisions,  bound  for  France. 

If  Swedish  or  Danish  vessels  are 
met  entering  a  port  blockaded,  they 
are  not  to  be  seized  for  the  first  at- 
ernpt :  but  other  neutrals  (there  were 
no  other  neutrals  but  American)  are  to 
be  seized  for  the  first  attempt. 

A  proclamation,  published  in  a  neu¬ 
tral  country,  that  a  port,  island,  or  na¬ 
tion  is  declared  to  be  blockaded,  is 
alone  sufficient  to  justify  the  condem¬ 
nation  of  the  vessels  of  such  neutral 
‘•'Late,  bound  to  such  places. 

No.  3 — November  6,  1793. 

All  vessels  laden  with  any  produce 
fjof  French  colonies,  or  carrying  provi¬ 
sions  to  such  colonies,  to  be  seized. 

No.  4 — January  8,  1794. 

AH  vessels  laden  with  produce  of 
French  W.  I.  islands,  and  proceeding 
From  such  islands  to  any  port  in  Europe, 
(to  be  seized.  Vessels  laden  with  pro- 
luce  of  said  islands,  and  owned  by 
Frenchmen  to  be  seized,  wherever 
hey  may  be  bound. 

Swedish  or  Danish  vessels  attempt- 
ng  to  enter  any  blockaded  port  In  said 
i  slands,  not  to  be  seized  on  the  first  at- 
empt;  but  other  neutrals  (Americans) 
'.o  be  seized  the  first  attempt. 

All  vessels  laden  wholly  or  in  part 
vith  military  or  naval  stores  bound  for 
aid  islands,  to  be  seized. 

No.  5-— January  25,  1798. 

All  vessels  laden  with  produce  of 
'.ny  colony  of  France,  Spain,  or  Hol- 
and,  and  bound  from  any  such  colony, 
o  any  port  in  Europe,  except  Engl¬ 
and,  or  the  country  to  which  such 
cssels  belong,  to  be  seized.  All  ves- 
\  ols,  wherever  bound,  laden  with  ene¬ 
my’s  property,  to  be  seized. 

All  vessels  attempting  to  enter  any 
lookaded  port,  in  said  colonies,  to  be 
(sized ;  Danish  and  Swedish  vessels 
ot  until  after  being  warned,  other 
cutrals  (Americans)  to  be  seized  on 
lo  first  attempt.  Vessels  laden  whol- 
»  or  in  pail  with  naval  or  military 
foies,  bound  to  French,  Spanish,  or 
)utch  '’’olcrtit*",  to  be  stired. 


FRENCH  DECREES,  kc. 

No.  1  —Decree  of  May  9,  1793. 

In  retaliation  for  proceedings  under 
treaty  of  March,  1793,  directs  the  de¬ 
tention  of  neutrals,  laden  with  enemy 
property  or  neutral  provisions,  the  for¬ 
mer  for  condemnation,  the  latter  for 
purchase.  To  become  null  and  void 
the  moment  England  should  respect 
the  rights  of  neutrals. 

No.  2— May  23,  1793. 
Exempts  Americans  from  the  ope¬ 
ration  of  the  above  decree. 

No.  3— May  28,  1793. 
Suspends  the  operation  of  decree' 
No.  2. 

No.  4 — July  1,  1793. 
Americans  again  exemptedfrom  the 
operation  of  decree  No.  1. 

_  No.  5— July  27,  1793. 

Again  enforces  decree  No.  1. 

No.  6 — November  18,  1794, 
Enemy  property  found  in  neutral 
vessels  to  be  seized  and  condemned, 
as  long  as  England  refuses  to  respect 
French  property  in  neutral  bottoms. 

The  general  regulations  of  this  de¬ 
cree  favorable  to  American  commerce. 
No.  7 — January  3,  1795. 

As  an  evidence  of  regard  for  amity 
and  treaties  with  America,  directs  a» 
observance  of  neutral  rights,  viz. 

That  free  ships  make  free  goods  : 

That  actual  force  is  necessary  to  con¬ 
stitute  blockade : 

That  contraband  includes  those  articles 
only,  that  are  directly  used  in  war 

No.  8 — July  2,  1796. 

Directs  French  vessels  to  treat  neu¬ 
trals  as  they  permit  the  English  to  treat 
them,  to  the  injury  of  France. 

No.  9— March  2,  1797. 
Considering,  that  the  treaty  of  1 77$, 
guarantees  to  France  whatever  favors 
America  might  thereafter  grant  to 
other  states;  and  considering  that 
America,  by  the  treaty  with  England 
of  1794,  grants  to  that  state  the  right 
to  seize  naval  stores  as  contraband, 
when  found  onboard  American  ves¬ 
sels,  bound  to  France ;  the  right  to 
seize  French  property  found  in  Ameri¬ 
can  bottoms  ;  and  the  right  to  treat  as 
pirates  any  Americans  found  in  the  ser¬ 
vice  of  France — the  commanders  of 
French  ships  are  therefore  authorised 
by  the  treaty  of  1778, 

To  seize  all  enemy  property  and  naval 
stores  found  in  American  vessels, 
the  latter  being  destined  for  British 
ports. 

To  punish  as  r>l  rates,  Americans 


72 


No.  6 —March  22,  1799. 

All  the  ports  in  Holland  declared  in 

a  state  of  blockade. 

No.  7 — June  24,  1803. 

Neutral  vessels,  that  shall  not  have 
furnished  on  the  outward  voyage,  ar¬ 
ticles  contraband  ot  war,  are  permit¬ 
ted  to  convey  from  enemy’s  colonies 
to  their  own  country,  the  produce  of 

such  colonies. 

No.  8 — August  17,  180o. 

Neutral  vessels  are  permitted  to 
trade  until  November  1,  next,  fiom 
enemy’s  colonies  to  England,  laden 
with  produce  ol  such  colonies,  the 
property  of  neutrals. 

No.  9— May  16,  1806. 

The  whole  coast,  from  the  Elbe  to 
Ostend,  declared  in  a  state  of  blockade. 

No.  io — January  7,  1807. 
Neutrals  forbidden  to  trade  fiom 
one  port  belonging  to  France  or  its  al¬ 
lies,  to  another  port  in  their  said  donu- 
nions  >  to  be  w&ruccl  the  til  stj  but 
seized  upon  a  second  attempt. 

No.  11 — October  16,  1807. 

All  masters  of  ships,  pilots,  mari¬ 
ners,  shipwrights,  and  other  sea-faring 
people,  born  in  the  dominions  ol  Bri¬ 
tain — recalled.  _ 

Commanders  of  ships  oi  war  and 
privateers,  are  ordered  to  seaich  foi, 
and  seize,  if  found  in  neutral  ships, 
any  persons  as  above  stated,  although 
such  persons  may  have  become  adopt¬ 
ed  citizens  of  the  United  States. 

Such  persons  serving  in  neutral  ships 
of  war,  to  be  reported  to  the  British 
government. 

Certificates  of  naturalization,  grant¬ 
ed  to  any  person  born  in  British  domi¬ 
nions,  declared  to  be  null  and  ot  no 

effect.  r  , 

No.  12 — Orders  in  council ,  o  c. 

The  orders  in  council  of  Nov.  11  and 
25,  1807,  were  adopted  and  confirmed 
by’acts  of  narliament, passed  in  March, 
April,  and  June,  1808.  A  brief  view 
of  their  objects  and  provisions  can 
alone  be  presented  in  a  newspaper.  It 
is  to  be  noted,  that  at  the  period  of  the 
adoption  of  these  orders,  Americans 
were  the  only*  neutrals. 

In  the  first  place,  Americans  are 
forbidden,  under  penalty  of  seizure 
and  condemnation  as  lawful  prize,  to 
sail  to  or  from  any  port  or  colony  of 
France  or  its  allies,  or  any  port  from 
which  the  British  flag  is  excluded. 
Americans,  laden  in  whole  or  in  part, 
with  goods  the  produce  of  France,  ol 
any  ally,  or  of  the  colony  of  either,  to 
be’  seized  and  condemned  us  lawful 


in  the  British  service,  although  they 
mav  have  been  impressed  into  it. 

No.  10 — January  18,  1798. 
Subjects  to  capture  all  vessels,  laden 
in  whole  or  in  part,  with  British  mer- 
chandize,  and  refuses  to  admit  into 
French  ports,  any  neutral  vessels  that 
had  during  their  voyage  entered  or 
touched  at  a  British  port. 

No.  11— March  18,  1799. 

Places  America,  in  relation  to  the 
role  d’equipage,  on  a  footing  with  all 

other  neutrals. 

No.  12 — October  29,  1799. 
Declares,  that,  as  the  English  and 
Russian  navies  are  manned,  in  part,  by 
subjects  of  neutral  states,  French  enm 
zers  are  to  treat  such  subjects  as.  pi¬ 
rates,  without  permitting  them  to  jus ; 
tify  themselves  on  the  plea  of  forcible 
detention. 

No.  13 — November  14,  1799, 
Suspends  the  operation  of  decree 
No.  12,  until  neutral  states  shall  have 
had  time  to  recall  their  subjects,  im¬ 
pressed  and  serving  on  board  British 
ships. 

No.  14 — Deceviber  13,  1800. 
Repeals  the  article,  of  decree  No. 
10,  subjecting  to  capture,  all  neutral, 
vessels  laden  with  British  merchandize. 

No.  15 — December  19,  1800. 
Establishes  the  regulations  ol  the 
ordinance  of  July  26,  1778 — which 
are  highly  favorable  to  neutrals  ;  sanc¬ 
tioning  the  principle,  free  ships  free 
goods,  and  the  other  principles  sel 
forth  in  the  armed  neutrality. 

This  ordinance,  however,  provide: 
that,  in  case  other  belligerents  shouk 
not  equally  respect  commerce,  thei 
France  might  retract  the  privilege: 
here  sanctioned,  and  treat  neutrals  a 
they  permitted  other  belligerents  t 
treat  them. 

No.  16 — Berlin  decree ,  Nov.  21,  1806. 

Enumerates  the  instances  in  whici 
England  violates  the  laws  of  nation 
and  rights  of  neutrals  :  declares,  thal 
as  the  British  disregard  the  principle 
of  justice,  and  for  their  own  ends  ar 
intent  upon  the  ruin  of  all  other  con' 
mercial  states,  it  is  lawful  to  oppos 
them  with  the  weapons  they  employ 
this  decree,  therefore,  establishes  th 
following  regulations  which  are  to  b 
the  fundamental  law  of  France,  unt 
England  shall  acknowlege  on  the  ocei 
the  rights  of  war  observed  on  lane 
until  she  shall  respect  the  property  ar 
persons  of  private  individuals,  and  cor 
fine  blockade  to  places  actually  inyeste ' 
All  commerce  with  the  British  i 


$?iz c,  as  well  the  vessel  as  the  cargo. 

Americans,  desirous  of  selling  the 
produce  of  their  own  country,  in  any 
port  of  France,  of  its  allies,  or  of  their 
colonies,  must  in  the  first  instance  clear 
out  for  a  British  port ;  pay  light,  port, 
and  other  costs  ;  and,  for  permission  to 
proceed  as  desired,  they  are  required 
to  pay  a  duty  upon  the  cargo.  If  after 
paying  the  duty,  or  getting  a  licence, 
and  sailing  from  the  British  port,  they 
cannot  get  admission  into  the  desired 
port  in  France — they  are  to  return  to 
the  British  port,  and  there  they  may  sell 
the  cargo,  or  return  with  it  to  America 

An  American,  arriving  in  a  British 
port,  with  a  cargo  idtended  fora  French 
or  allied  port,  and  finding  lie  cannot 
enter  the  desired  port,  may  lay  up  his 
cargo  in  a  British  warehouse  for  15 
months  :  at  the  expiration  of  that  time, 
he  must  remove  it,  and  pay  all  expell¬ 
ees  ;  or  in  default  thereof,  the  cargo 
must  be  sold  to  pay  the  duties,  Sec. 
But  the  said  cargo  may,  at  any  time 
within  the  15  months,"  be  taken  out, 
and  either  destroyed  or  re-exported  to 
America,  upon  payment  of  all  the  costs. 

An  American,  laden  with  cotton, 
and  arriving  in  England,  is  not  permit¬ 
ted  to  export  it  to  any  French  or  allied 
port,  or  to  return  with  it  to  America  : 
|;t  must  be  sold  in  England — unless  in 
my  special  case  the  king  of  England 
may  grant  a  licence  for  exportation. 

Americans,  desirous  of  obtaining  for 
heir  own  use,  any  produce  of  France, 
>f  its  allies,  or  of  the  colony  of  either, 
■hust  first  sail  for  England  arid  obtain 
permission  to  proceed  to  the  port  of 
lestination  ;  if  permitted  to  take  a  car- 
?o  at  such  port,  they  are  then  to  call 
it  a  British  port,  and  pay  a  duty  upon 
t,  which  will  entitle  them  to  proceed 
.0  America. 

Americans,  after  having  been  per- 
nitted,  to  sell  their  own  produce  or 
he  produce  of  a  French  colony,  in  the 
notlier  country,  and  to  receive  a  rc- 
um  cargo,  must  call  and  pay  a  duty 
ipon  it  in  some  British  port. 

drine,  brandy,  sugar,  snuff,  and  to- 
>acco,  after  having  been  imported  into 
'mgland,  with  an  intention  of  export- 
ig  t  hem  to  some  French  port,  in  the 
aothcr  country  or  colony,  cannot  be  so 
xported  unless  by  special  licence  from 
he  king  of  England. 

The  following  are  the  duties,  that 
in  American  must  pay  in  British  ports, 

>r  permission  to  sell  the  produce  of 
is  own  country,  in  any  port  or  colony 
f  F  1,ance  or  of  its  allies ;  these  at‘c  but 
few  of  the  articles  taxed : 

K 


lands  is  prohibited,  they  being  declare 
ed  in  a  state  of  blockade. 

All  private  persons  and  property, 
belonging  to  the  British  islands,  to  be 
seized  whenever  found. 

All  merchandize  or  productions  of 
England  or  her  colonies,  to  be  seized 
whenever  found. 

Vessels  from  England  or  her  colo¬ 
nies,  or  having  touched  at  either  to  br 
prohibited  from  entering  any  port  or 
colony  of  France. 

No.  17 — Milan  decree,  Dec.  17,  1808. 

Considering  that  England  compels 
all  neutral  vessels  to  call  at  her  ports 
and  pay  a  duty  on  their  cargoes :  that, 
by  tlris  regulation,  such  states  as  sub¬ 
mit  to  pay  this  tribute,  place  them¬ 
selves  on  the  footing  of  British  colo¬ 
nies  :  and  that  submission  to  this 
imposition  encourages  England  to  es¬ 
tablish  and  consider  it  as  a  right  : 
therefore. 

All  vessels,  that  shall  have  paid  a 
tax  to  England,  or  submitted  to  her 
regulations,  shall  be  condemned  as 
British  property. 

All  vessels,  with  whatever  cargo* 
sailing  from  any  port  in  England,  in 
her  colonies,  or  in  countries  under  he; 
control;  may  be  seized  as  lawful  prize. 

This  decree  to  cease  to  be  in  force 
against  any  state,  that  shall  have  firm¬ 
ness  to  assert  its  rights  ;  but  to  be  en¬ 
forced  against  all  others,  as  long  as 
England  continues  to  harass  the  com¬ 
merce  of  neutrals. 

No.  18 — April  17 — Bayonne  decree. 

Considering  that  an  embargo  lias 
been  laid  on  all  American  shipping  in 
the  ports  of  the  United  States;  and 
that  therefore,  any  vessels,  found  on 
the  ocean  under  the  American  flag, 
must  be  considered  as  fraudulent  and 
really  covering  British  bottoms. 

All  vessels  under  the  American  flag 
found  at  sea,  or  entering  the  ports  of 
b  ranee,  after  this  date,  are  to  be  sei¬ 
zed. 

Duel  of  French. 


Ashe?, 

Keef, 

Rutter, 

cables  and  Cordage, 
Corn, 

Cotton, 

Fish, 

Flour, 

Ken:p, 

Inaigo, 

Iron,  in  bar?. 

Iron,  pig. 

Pitch  anu  Tar, 

Pori:, 

Rice, 

1  obacco, 

Turpentine 

Wheat, 


D0H3. 

Cls* 

per  cwt. 

2 

23 

bbl. 

3 

33 

cwt. 

4 

5° 

cwt. 

3 

iy 

bushel, 

0 

15 

lb. 

0 

16 

cwr. 

0 

go 

bbl. 

2 

cwt. 

•* 

3 

37 

!b. 

0 

45 

ton. 

13 

50 

do. 

6 

75 

bbl. 

0 

ay 

do. 

6 

sf> 

cwt. 

6 

4S 

lb. 

0 

cwt< 

0 

7I 

bushel, 

0 

2<i 

w  A 

j 


In  comparing  these  lists,  of  the  public  acts  of  England  aftd 
France,  against  neutral  trade,  these  reflections  arise.  . 

In  the  whole  course  of  proceeding,  France  shews  an  anxiety 
to  respect  the  rights  of  neutrals  ;  in  every  act,  it  pleads  neces¬ 
sity  and  retaliation  in  excuse,  and  in  every  act,  it  pledges  itself 

to  repeal  all  its  decrees  against  neutral  commerce,  when  -hng-.  , 

land  shall  acknowlege  the  laws  and  rights  of  nations. 

France ,  in  its  proceedings,  shews  a  marked  partiality  foi  ie. 
United  States  :  and  in  its  early  decrees,  they  are  distinguished 

favorably  from  other  neutrals.  • 

France  has  repeatedly,  in  the  course  of  the  war,  as  m  l/9a 
and  1800,  repealed  her  decrees  against  neutral  commerce,  an 
adhered  to  the  regulations  of  the  armed  neutrality  of  1/eO. 
From  the  year  1800,  when  Bonaparte  arrived  at  supreme  pow¬ 
er  to  the  date  of  the  Berlin  decree,  1806,  the  most  liberal  po¬ 
licy  was  observed  by  France  :  this,  the  English  journalists  them¬ 
selves  acknowlege,"  and  it  is  established  by  the  facility  with 
which  our  own  citizens  obtained  justice  in  the  courts  of  Fiance. 

France  in  short,  interested  in  the  safety  of  neutrals,  has  is¬ 
sued  no  decree,  that  England  had  not  before  given  the  example 
of.  It  could  not  profit  by  the  injury  of  neutrals,  their  depres¬ 
sion  was  not  necessary  to  its  policy  ;  it  has  at  no  time  been  able 
to  enforce  its  decrees,  and,  therefore,  they  are  to  be  considered 
as  protests  against  the  usurpations  of  England,  rathei  than  as 

assaults  upon  the  rights  of  neutrals.  .  , 

On  the  other  hand,  look  at  the  conduct  of  Englana.  .  . 

In  its  earlv  decrees,  it  asserts  as  a  right ,  every  usurpation  in¬ 
jurious  to  neutrals.  It  does  not  pretehd  to  be  compelled  from 
the  example  of  France  ;  all  those  decrees  are  founded  upon  the 
doctrines  of  1756-7  :  it  expresses  no  regret  at  the  injustice  done 
to  neutrals,  and  no  where  promises  to  repeal  its  orders,  as  soon 

as  France  should  repeal  tier’s.  .  . . t  . 

In  her  orders  England  maliciously  and  invidiously  discrimi¬ 
nates  In  favor  of  European  neutrals,  and  against  American  neu 

In  1797,  when  negotiating  a  peace  with  France,  the  britisl 
ministry  instructed  their  envoy,  Malmsburvy*  not  to  consent  tf 
anv  stipulations  in  favor  of  rights  claimed  by  neutrals....a  lac 
that  proves  France  the  friend,  and  England  the  enemy  o*  neu 

1 England  has  not,  in  a  single  instance,  repealed  or  retracte 
from  her  orders  against  neutrals;  they  have:  foUowcd  eac 
other,  as  links  in  the  chain  intended  to  fetter  all  trade  but  he 
ov  n  •  they  have  been  progressively  rendered  more  and  mor 
grievous,  until  the  avowal  is  at  length  made,  that  no  commerc 

*  Lora  Grenville  wrote  thus  to  lord  Malmsbury . “  It  is  lus  majesty  s  d< 

•jp(I  .,r>l  mnltcr-  >le  resolution  on  tins  point,  not  to  admit  of  any  pioposall 
iVS’emK,,  on  the  .object  of  the  right,  or  claims  ol  neutral  pot 


c'13. 


^  •’  4  4,44  4,4  '  -J ■  •  J 

'Papers  relating  to  negotiations  at  L:-.e. 


75 

, shall  any  longer  be  carried  on  but  by  license  from  the  English 
ministry. 

Britain ,  in  short,  interested  in  the  ruin  of  commercial  states, 
has  not  hesitated  at  any  act,  calculated  to  attain  that  end.  It 
has  at  no  time,  by  its  own  acknowlegement  and  boast,  been  af¬ 
fected  by  the  decrees  of  France,  yet  has  exercised  its  enormous 
and  unnatural  power  to  crush  neutrals  as  if  they  were  enemies. 

These  observations  relate  to  the  above  official  acts  of  the  go¬ 
vernment  ;  upon  extending  the  inquiry,  the  contrast  is  rendered 
still  more  odious  to  England. 

The  British  h  ave  constantly  impressed  our  seamen,  not  only 
on  the  high  seas,  but  in  our  own  waters,  and  on  our  own  qua¬ 
rantine  grounds.  The  French  never  have  done  so. 

The  British  have  constantly  asserted  a  right  to  seize  our  ves¬ 
sels,  bound  to  ports  not  open  in  peace.  The  French  never  have 
done  so. 

T.  he  British  have  blockaded,  by  their  public  ships,  our  bat’s 
and  harbors,  seized  vessels  entering  and  going  out,  and  sent 
them  to  their  own  ports  for  trial,  or  rather  for  condemnation. 
The  French  have  not  done  so. 

The  British  have  repeatedly  fired  at  and  detained,  in  our  own 
waters,  our  coasting  vessels  ;  and  in  one  instance,  killed  an  Ame¬ 
rican  citizen  on  board  one  of  them.  The  French  never  have 
done  so. 

The  British  have  attacked  and  destroyed,  in  our  jurisdiction, 
and  therefore  under  our  protection,  an  enemy  ship.  The  French 
never  have  done  so. 

1  he  British  have  assailed,  in  our  jurisdiction,  the  minister  of 
France  and  broken  open  his  trunks.  The  French  never  have 
done  so. 

The  British  attacked  the  United  States’  ship  of  war,  Balti¬ 
more,  entering  the  Havanna,  and  convoying  a  fleet  of  American 
merchantmen  :  they  impressed  from  fifteen  to  twenty  of  the 
crew  of  the  Baltimore,  and  seized  a  part  of  the  convoy;  dis¬ 
gracing  our  flag  and  plundering  our  property,  at  the  same  time.. 
The  French  never  committed  such  acts. 

The  British  attacked,  in  our  own  waters,  a  public  ship  of  war, 
the  Chesapeake,  killed  and  wounded  a  part  of  its  crew,  forcibly 
impressed  another  part,  every  man  of  whom  were  natives  of 
America,  and  after  performing  this  exploit,  returned  into  the 
harborof  Norfolk.  1  he  French  never  have  been  guilty  of  such 
an  atrocious  outrage. 

I  he  British  have  declared,  by  proclamation,  that  our  natura¬ 
lization  laws  are  of  no  value  or  effect.  The  French  have  not 

done  so. 

The  British  have  published,  in  our  own  papers,  a  proclama¬ 
tion  inviting  our  citizens  to  violate  our  own  laws,  and  offered 
protection  to  such  as  should  violate  them.  The  French  neves 
have  done  so.  '  ’ 


76 

The  British  have  published  in  official  form,  that.  American 
ships  which  should  violate  our  laws,  and  enter  British  ports, 
would  not  be  called  upon  for  the  usual  papers.  The  French 

have  never  done  so. 

The  British  have  published,  in  our  own  papers,  a  letter  iiom 
their  prime  minister,  as  an  appeal  to  the  American  people  against 
their  government.  The  French  never  have  done  so.—.Genet, 
the  French  minister,  was  recalled  by  his  own  government  lor 
addressing  the  American  people,  on  a  personal  controversy  with 

our  government.  ,  .  ,  .  .  , 

The  British  have  forced  an  illegal  trade  with  our  citizens,  by 

means  of  armed  ships.  The  French  never  have  done  so.  _ 
The  British,  in  fine,  have  refused  all  atonement  or  reparation 
for  the  injuries  and  insults  experienced  by  our  country  ;  and 
they  have,  instead  of  punishing,  promoted  the  admirals  and  cap-^ 
tains,  that  have  been  most  audacious  and  wanton  in  their  abuse 

and  violation  of  our  rights.  .  .  - 

Such,  my  friends,  are  some  of  the  most  striking  instances  of 

British  outrage ;  probably  there  are  many  others,  m  your  remem¬ 
brance,  equally  gross  and  unjustifiable:  I  have  noted  these  to 
contrast  the  conduct  of  the  two  belligerents,  and  I  think,  it  must 
be  evident  that  our  complaints  against  Prance  bear  no  sort  ot 
comparison  in  extent  or  multiplicity  with  those  against  England. 
If,  however,  any  advocate  of  the  latter,  is  disposed  to  question 
the  fact,  I  hope  every  attention  will  be  paid  to  him  :  a  thorough 
investigation  is  absolutely  necessary,  and  the  public  voice  will 
remain  on  that  side  alone,  that  is  supported  by  plain  and  unde., 
niable  facts. 

Marchs  1,  1809. 

4  '  • 


LETTER  XV. 

» 

I  OMITTED  to  mention,  in  my  last  letter,  some  circum* 
stances,  that  are  too  much  in  point  to  be  entirely  overlooked. 
The  peace  of  Amiens,  in  1802,  had  virtually  repealed  all  the 
belligerent  orders  injurious  to  neutral  rights  :  it  is  of  conse-: 
ouence,  therefore,  that  you  should  know,  which  of  the  belhgej 
rents  first  renewed  its  aggressions,  and  fortunately  this  question 

may  be  decisively  answered.  ,  .  . 

From  1S02  to  November,  1806,  France  did  not  issue  a  single 
decree  prejudicial  to  neutrals  :  the  ordinance  of  D'8,  heieto 
fore  noticed,  was  alone  enforced,  and  it  was  the  wish  of  Bona¬ 
parte,  as  avowed  by  M.  Portalis,  president  of  the  tribunal  ot 
prizes,  to  respect  the  rights  and  interests  of  neutral  P°'ver. 
Hut  England  had  no  sooner  broken  the  peace  of  Amiens,  Bias 


- 

her  orders  against  neutrals  were  renewed.... seven  different  mea¬ 
sures  were  taken  by  her  ministry  from  1802  to  1806,  calculated 
to  destroy  all  neutral  trade  with  any  part  of  Europe,  excepting 
England  or  her  allies ;  the  last  of  these  orders  was  issued  in 
May ,  1806,  and  declared  the  whole  coast  from  the  Elbe  to  Brest, 
1200  miles  in  extent,  in  a  state  of  blockade,  although  it  was  not 
even  pretended  to  be  practicable  to  enforce  it,  within  half  that 
extent.  Bonaparte,  therefore,  finding  that  these  acts  of  outrage 
produced  all  the  consequences,  that  could  have  followed  equita¬ 
ble  measures,  and  that  neutrals  made  no  efforts  to  maintain  their 
rights.... abandoned  the  liberal  policy,  which  characterized  the 
preceding  part  oi  his  administration,  and  retaliated  by  the  Ber¬ 
lin  decree  of  November ,  1806. 

At  the  renewal,  therefore,  as  well  as  at  the  commencement 
of  the  war,  Britain  began  the  system  of  depredation,  that  has 
terminated  in  the  present  embarrassments  of  our  country;  and, 
as  the  advocates  of  England  have  themselves  declared,  what 
[should  justify  the  United  States  in  going  to  war,  it  can  no 
longer  be  questioned  that  Britain  is  the  proper  object  for  hosti¬ 
lities,  since  she  has  not  only  been  the  earliest,  but  the  greatest 
violator  of  our  rights. 

Although  the  decision  on  this  point  might  be  taken  from  what, 
i  have  already  stated  in  these  letters,  and  which,  I  am  persuaded, 
defies  refutation. ...there  is  another  description  of  outrage  upon 
our  rights,  which  deserves  your  attention  ;  it  is  such  as  no  na¬ 
tion,  but  Britain,  has  ever  perpetrated,  and  such  as  no  indepen¬ 
dent  power,  but  America,  would  have  so  long  and  tamely  sub¬ 
mitted  to.  7'he  outrage  I  allude  to  is  founded  upon  what  is 
termed  the  rule  of  ’56,  which  declares  it  unlawful  for  neutrals 
to  carry  on,  during  war,  any  other  trade  than  that  which  the) 
pursued  during  peace.  To  place  the  subject  in  as  distinct  a 
point  of  view  as  possible,  I  will  state....  1.  The  circumstances 
under  which  the  ride  was  issued,  and  its  objects. ...2.  The  an- 
hority  which  gave  it  existence.. ..3.  Its  consequences  to  neu- 
nils. ...4.  Its  pretexts,  and  inconsistency  with  the  practice  of 
England  herself. 

1.  Every  maritime  power  of  Europe  has  made  it  a  part  of 
ts  policy,  to  monopolize  the  trade  of  its  colonies  ;  and  the  po- 
icy  of  admitting  neutrals,  during  war,  to  participate  in  that 
rade,  has  been  as  universally  and  steadily  pursued.  England, 
pent  upon  the  destruction  of  the  French  marine,  opened  the 
rvar  ol  1755-6,  by  unexampled  acts  of  perfidy  to  France,  and 
butrage  against  neutrals.  In  the  moment  of  peace,  her  fleets 
aptured  above  300  French  merchantmen,  the  crews  of  which 
■vere  immediately  cast  into  loathsome  prisons.  Having  thus 
rippled  the  only  marine  that  could  check  their  usurpation,  the 
British  introduced,  for  the  first  time,  the  rule  of  ’56,  and  cap- 
are  cl  all  the  neutral  vessels  found  trading  to  or  from  French 


78 

.Colonies . The  complaints  of  the  neutral  powers  were  loud  but 

unavailing.... the  British  fleets  rode  unresisted  on  the  ocean. 

2.  England  never  has  had,  like  other  states,  a  maritime  code, 
and  she  has  constantly  refused  to  acknowlege  any  fixed  pi  inci- 
ples... .because,  uncertainty  affords  pretexts  for  usurpation.  The 
power  of  deciding  what  are  the  laws  of  nations  or  the  rights  of 
belligerents,  is  not  invested  in  the  legislative  or  judicial  depart¬ 
ments  of  government;  the  ministry,  or  privy  council,  alone  ex¬ 
ercise  this  all  important  authority,  and  they  decide  upon  all 
questions,  not  according  to  the  laws  of  nations  or  the  pnnci- 
pies  of  universal  justice,  but  upon  expediency  or  accoiding  to 

circumstances . It  is  true  there  are  admiralty  courts,  and  their 

proceedings  are  conducted  in  a  manner  somewhat  like  those  of 
the  ancient  civil  law  proceedings;  but  they  are  bound  to  give 
judgment  according  to  the  orders  of  tne  council,  howe\  ei  repng- 
nant  they  may  be  to  the  laws  of  nations  or  of  justice  ;  and,  in --a 
deed,  the  judge  of  the  high  court  of  admiralty  is  himself  not  only 
a  member  of  that  council  and  a  pensioner  of  the  government,  out 
he  participates  in  the  proceeds  of  prizes  condemned.  Lnder 
such  a  corrupt  system,  can  it  be  a  matter  of  surprize,  that  every! 
species  of  outrage  and  tyranny  has  been  exercised  against  us, 

under  the  mockery  of  law. 

3.  It  would  be  impossible,  m  this  place,  to  enumerate  all  the 
ruinous  effects  of  the  rule  of  ’56,  upon  our  neutral  trade,  under 
the  various  modifications,  which  the  interests  of  Britain  dictated.- 
I  submit  to  you,  however,  a  federal  picture  of  this  outrage,  the 
more  willingly  because  its  source  must  convince  you  how  infa¬ 
mously  unjust  this  rule  must  be,  when  it  is  thus  condemned. 
The  memorial  of  the  merchants  of  Philadelphia,  presented  to 
congress  in  January,  1806,  and  signed  by  Messrs.  Geo.  Latimer, 
Robert  Wciln ,  James  Tard,  Joseph  Sims ,  and  other  equally  warm. 

federalists,  contains  these  sentiments  :.... 

«  The  doctrines  of  the  British  court  are  novel  in  themselves, 
unequivocally  hostile  to  neutral  rights,  inconsistent  with  thej 
former  declarations  of  her  ministers  and  decisions  of  her  judges  ; 
and  partaking  rather  of  the  shifting  character  of  com  enience, 
than  of  permanent  right  or  established  law. 

«  The  effect,  of  this  novel  doctrine,  upon  neutral  interests,  is 
of  the  most  serious  and  alarming  character;  it  goes  to  nothing 
snort  of  the  destruction  of  neutral  commerce ,  and  of  inflicting  a 
most  deep  and  deadly  wound  upon  the  trade  of  the  United  States 

in  particular.  t  .  ,  J 

“  The  time  and  manner,  of  announcing  it,  accord  with  tne 

principle  itself.  At  a  moment  when  mercantile  enterpnze,  con¬ 
fiding  in  the  explanations  given  upon  this  point  by  the  Britis 
ministry,  was  strained  to  the  utmost.. ..a  new  decision  o  t 
court  of  appeals  is  announced,  and  every  sail  is  sti  etched  t 
catch  the  unweary  Americans,  unsuspectingly  confiding  in  wrr 
was  the  laws  of  nations. 


.  “  submit  to  these  practices,  would  derogate  from  the  nai 
t.ional  character  and  independence  of  the  United  State*  ” 

If  i. .is  possible  to  add  to  this  description  of  the  in/lous  con- 
cluct  of  Britain  the  materials  are  to  be  found  in  the  memorials 
from  Boston,  Newburyport,  and  New  York,  presented  to  .-on- 
gress  along  with  the  above....there  is  also  a  letter,  from  the  nre- 
sent  governor  of  Massachusetts,  C.  Gore ,  confirming  every  sen- 
timent  m  this  memorial.  J 

,  4-  T,he  Pr?‘^ts>  that  a'-e  urged  by  the  British  ministry,  bv 
tne  author  of  M  ar  in  Disguise,  and  by  the  other  advocates  of 
this  pernicious  doctrine,  are....that,  the  revenue  and  number  of 
seamen  of  France  are  increased,  to  the  injury  of  England,  by 
the  neutral  trade  to  the  colonies.  The  futility  of  their  pretexts 
must  be  evident  from  this  single  remark.. ..that,  if  a  belligerent 
has  a  right  to  interrupt  a  neutral  trade  with  the  colonies  be* 
cause  the  revenue  and  seamen  of  his  enemy  are  thereby  increas- 
e  ,  he  may  interrupt  all  trade  or  intercourse  with  the  mother 
country  also,  since  the  revenue  and  seamen  are  increased  by 
any  trade  whatever.  And,  indeed,  it  is  now  evident,  that  Eng¬ 
land  had  it  m  contemplation  to  forbid  all  trade....the  rule  was 
first  applied  to  the  colonies,  it  is  now  extended  to  all  trade  what¬ 
ever.  But,  besides  the  obvious  injustice  of  these  pretexts 
they  are  refuted  by  the  practice  of  England  herself:  after  con¬ 
demning  the  American  for  trading  to  a  French  colony,  they 
permit  their  own  subjects  to  pursue  the  voyage,  in  the  same 
vessels  and  with  the  same  cargo  thus  plundered  from  the  neu¬ 
tral  to  the  very  port  of  original  destination,  and  issue  a  licence 
or  the  purpose... .a  fact,  which  if  no  others  existed,  would  alone 
iprove  that  the  hostility  IS  not  against  the  revenue  and  seamen 

,  .  Irle’  b,u‘  aSain3t  the  innocent  trade  of  neutrals.  Further 
if  it  is  illegal  for  a  neutral  to  trade  to  a  French  colony  in  time’ 

jfe“  6  ga  t0  trade  t0  British  colonies ;  yet  what 

rhe  navigation  act  of  England,  the  10th  article  in  particular 
nterdicts  all  intercourse  with  its  colonies,  yet  there  is  no  in 

Lar  'on’ihh  rT  "0tbeen  adraitted  them,  during 

Ivfmnbl  1  thlnP?np.he  snowing  quotations,  from  a  celebrated 
»an  phlet,  published  in  1804,  by  Mr.  S.  Cock,  commercial  and 

ub  1C  agent  of  Liverpool,  must  be  conclusive  :  it  is  addressed 

o  teheT  Ut  mlniSter>  Ge°-  Cann'ng>  and  is  an  a, Zt 
o  lord  ShefiieW  s  object, ons  to  opening  the  colonies  to  neutrals. 

...  eParture  (says  Mr.  C.)  from  our  navigation  laws,  to  the 

nee  l/„  he  aCtSr°f  17,95'6’  enlarged  beyond  all  former  experi- 

umber  rfUr.-i  iind  consequently  our  revenue  and  the 

Ln  f  lfing-  men.  Our  naval  force  and  our  ability  to 

ipport  tt,  have  been  powerfully  promoted  by  opening  our  colo- 

te  m„P^  d?  0f  th,S  pf;ri0cl  (1804)very  fir  exceeds  even 
r  •  '-Mrishing  period  of  the  peace  before  1793,  and  the 

--mintnee  of  our  naval  power  is  sufficiently  proved  by  a  sc- 


.Kies  of  smenclid  victories,  unequalled  even  in  the  naval  history 
of  Britain.  Facts  brilliant  and  striking  .lute  tliese  refute  the 
assertion,  that  the  suspension  ol  the  navigation  act  injures  the 
trade  or  navy  of  England;  if  that  act  had  been  adhered  to,  we 
should  have  had  much  less  than  half  our  present  commerce  and 
revenue,  to  meet  the  arduous  contest  in  which  we  are  engaged. 
In  1792,  our  import  was  fifty  millions,  duty  five.,.. but,  in  1801, 
our  import  was  eighty  millions,  duty  eight.  In  short,  the  im¬ 
mense  rise  in  our  trade  and  financial  resources,  whilst  our  fight¬ 
ing  seamen  arc  more  resistless  than  ever,  shews  the  wisdom  ol 
accommodating  our  laws  to  our  circumstances . 

u  Foreign  carriers  are  so  far  from  injuring  our  marine,  that 
♦hey  contribute  greatly  to  its  strength,  by  permitting  us  to  spare 
fjur  seamen  from  ships  of  trade  for  those  ol  war . In  the  Ame¬ 

rican  war,  if  we  had  not  carriers,  we  could  not  have  continued 
hostilities,  a  great  portion  of  our  import  and  export  trade  was 
carried  bv  the  Flemings... .a  custom  diametrically  opposite  to 
the  navigation  act:  and  why  did  government  suspend  that  act, 
but  because  they  thereby  preserved  our  trade,  acquired  revenue^ 
and  could  employ  our  seamen  in  the  navy  for  our  national  salva¬ 
tion.  ,  .  .  , 

w  A  departure  from  the  navigation  laws,  in  the  present  war, 

has  enlarged  beyond  all  example,  our  trade,  revenue ,  and  the 

number  of  fighting  men.* 

“Britain  has  doubled  her  commerce,  and  greatly  increased 
her  naval  power,  by  employing  neutral  flags: 

The  following  statements  are  given  in  proof: 


Entries  into  all  the  ports  of  Great  Britain  in 


1791  ] 

1792 

1800 

1801 

Foreign  ships,  ------ 

tonnage, . 

'seamen,  ----- 

1,710 

265,574 

11,931 

1,586 
253,858 
13,685  j 

4,341 

649,985 

34,108 

3,132 

654,354. 

33,327 

Clearances  from  all  the  ports 

of  Great  Britain  in 

1791 

]  1792 

1800 

1801 

Foreign  ships, . 

tonnage,  . 

seamen, . 

843 

156,548 

7,622 

771 

149,095 

7,761 

4,292 

630,170 

34,104 

5.057 

742,847 

38,612 

These  important  facts,  emphatically  prove,  that  at  the  mo 
ment  Britain  forbids  neutrals  to  purchase,  even  for  their  own  use 


*  To  understand  tbe  extent  to  winch  British  trade  is  promoted  by  the  cn 
nlovmcnt  of  foreign  seamen,  it  is  sufficient  to  be  acquainted  with  the  tact,  th- 
Jt  the  commencement  of  every  wa.-  the  British  parliament  passes  an  act  pci 


nutting  their  merchantmen  to  be  navigated  by  crews,  consisting  of  one-tourt 
British  subjects,  the  remainder  foreigners.  By  this  means  the  government  j 
enabled  to'  impress  for  their  fleets,  thrpe-fouvths  of  their  own  mcicanti.j 

seamen. 


the  produce  of  French  colonies,  her  own  revenue,  seamen,  and 
trade  are  increased  by  the  carriage  of  British  colonial  produce. 

in  neutral  bottoms . When  you  reflect,  my  friends,  upon  these 

damning  truths,  can  you  wonder,  that  France  refuses  to  remain 
an  indifferent  spectator?  Can  you  be  surprised,  that  Bonaparte 
Irefuses  to  allow  the  neutral  carriage  of  enemy’s  property,  when 
jhis  enemies  violate  all  neutral  rights  to  his  injury;  when  they 
support  the  war  by  the  very  means  that  they  declare  it  unlawful 
ior  neutrals  to  pursue  in  relation  to  an  innocent  trade  to  French 
colonies  ? 

Such  are  the  origin,  authority,  character,  and  effects  of  the  fa¬ 
mous  rule  of  J56.  I  beseech  you  to  read  again,  the  Philadelphia 
memorial  ;  the  perfidy  and  outrage  there  complained  of,  were 
perpetrated  before  Bonaparte  had  a  single  decree  in  force  hostile 
(o  neutrals:  the  rule  has  not  only  remained  in  force,  but  its 

I  errors  have  been  increased ;  the  consequences  predicted  in  the 
federal  memorial  have  been  realized,  neutral  commerce  has  been 
destroyed,  and  a  deep  and  deadly  wound  has  been  inflicted  upon 
'he  trade  of  the  United  States .  Yet,  with  shame  to  them,  let  it 
je  told,  that  some  of  the  very  men,  who  in  1 806  called  upon 
government  not  to  submit  to  these  practices,  have  since  de- 
lounced  the  government  and  declared  that  England  has  done 
is  no  injury!  some  of  the  very  party,  which  declared  that  to 
submit  to  the  rule  of  1756,  would  derogate  from  our  national 
character  and  independence,  have  now  the  impudence  to  pre* 
end  that  we  should  go  to  war  with  Bonaparte*  to  avenge  the 
;onsequences  of  this  doctrine,  which  was  enforced  by  Britain 
>efore  he  was  born,  and  which  was  renewed  before  France  had 
ssued  a  single  obnoxious  decree. 

When  you  reflect,  my  friends,  upon  the  enormous  abuses 
ommitted  upon  our  rights  by  the  British,  abuses  that  cannot  be 
lescribed  in  stronger  terms  than  the  federal  memorials  convey ; 
.nd  when  you  reflect,  that,  without  repeal  or  redress  for  those 
buses,  the  men  who  thus  demanded  them,  are  now  crouching 
o  the  rod  that  smote  them,  violating  the  laws  of  the  union,  and 
xcitingf  rebellion  in  the  land,  which  by  their  own  acknowlege- 
nenthas  been  so  much  abused  and  insulted. ...when,  I  say,  you 
eflect  upon  these  things,  you  must  have  more  than  a  common 
hare  of  charity  to  believe  that  the  motives  of  such  men,  and 
uch  a  party,  are  either  pure  or  honorable  ;  and  you  must  have 
n  uncommon  share  of  apathy  and  indifference  for  the  welfare 
f  your  country,  if  your  resentment  is  not  avowed  against  that 
ation,  which  has  never  ceased  to  look  with  enmity  and  jealousy 
pon  the  happiness  of  our  people,  the  freedom  of  our  country, 
nd  our  prospects  of  a  prosperous  commerce.  You  are  called 
)  support  your  government,  not  merely  under  the  pressure  of 


See  the  rebellious  proceedings  in  Massachusetts. 

t  See  appendix. ...D. 


82 

foreign  aggression,  but  against  a  faction,  which  after  having 
complained  of  that  aggression  in  the  bitterest  terms,  have  now 
become  the  panegyrists  of  that  foreign  power,  and  the  revilers 
of  their  own  government.  The  present  condition  ot  our  peo¬ 
ple,  in  doubt  and  timidity  respecting  foreign  relations,  ana 
from  this  very  circumstance  distracted  at  home,  cannot  be  much 
longer  continued,  and  it  behoves  you  to  be  prepared  lor  any 

events  that  may  arise.  . 

In  the  present  letter,  I  close  the  consideration  of  the  ques¬ 
tions... .on  priority  and  extent  of  aggression;  and,  I  invite  any 
advocate  of  England,  to  shew  that  I  am  incorrect  m  declaring.... 
that  the  British  have  been  the  earliest  and  greatest  violators  ot 
our  rights,  and  that,  if  the  plea  of  retaliation  can  excuse  ag¬ 
gression,  France  alone  is  entitled  to  its  support.  In  my  next, 
I  will  endeavor  to  vindicate  the  republican  party  from  the  charge 
of  producing  or  promoting  our  present  embarrassments.. ..Qy  a 
review  of  the  conduct  of  the  first  administrations  of  our  country. 

April  6,  1809. 


LETTER  XVI. 

I  PROPOSE,  in  the  present  letter,  to  enter  into  an  inqui¬ 
ry,  of  no  inconsiderable  importance,  and  to  call  your  attention  to 
a  number  of  circumstances,  that  seem  to  have,  very  unaccount¬ 
ably,  escaped  the  recollection  of  the  public. ...it  is  a  season  fit 

to  speak  truth.  ‘ 

‘  What  has  been  the  conduct  of  our  government  towards  trance 

and  England  ?  .  J 

The  examination  of  this  question  will  prove,  what  it  is  ot 
great  consequence  you  should  know’  That  Britain  has  had 

every  reason  to  be  satisfied  with  our  government,  and  theiefordl 
that  her  depredations  are  the  more  unjust.  2.  That  France  has 
had  serious  cause  to  complain,  and  therefore,  that  there  is  some 
excuse  for  her  conduct.  3.  That  the  embarrassments,  now  felt 
by  our  country,  originated  in  the  unfortunate  policy  of  the  admi¬ 
nistrations  which  preceded  that  of  Mr.  Jefferson. 

This  inquiry  can  have  no  invidious  object  at  this  time,  how¬ 
ever  plausible  such  an  objection  to  it  may  have  been  thirteen! 
years  ago;  indeed,  it  is  absolutely  necessary  to  a  just  concep¬ 
tion  of  our  public  affairs,  and  especially  as  you  are  every  da} 
falsely  told,  that,  the  evils  which  have  befallen  our  commerce 
concerns,  are  the  effects  of  measures  adopted  by  the  represen 

tatives  of  the  republican  party. 

That  I  may  render  the  exposition  as  concise,  and  yet  as  dis 

jtinct  as  possible^  I  divide  the  subject  under  these  heads.;...** 


The  conduct  of  France  to  America,  from  1778  to  1795,  when 
the  British  treaty  was  adopted.  2.  The  conduct  of  England 
f“m  that  term.  3.  Our  conduct  to  France  and  England. 
4.  Our  conduct  in  relation  to  our  maritime  or  neutral  rights. 

l._  For  evidences,  of  the  magnitude  and  generosity  of  the 
-.ervices  of  France  in  our  revolution,  I  appeal  not  merely  to 
those  who  remember  them,  but  to  the  public  declarations 
speeches,  and  correspondence  of  the  Washington  administration! 
although  the  latter  is  the  weakest  testimony,  it  proves....that 
he  alliance  of  h  ranee,  greatly  contributed  to  the  freedom  of 
America  ;  that  France  realized  the  armed  neutrality  of  1780  * 
md  that  to  the  alliance  of  France,  we  owed  in  a  great  measure" 
yhatever  favorable  terms  were  had,  at  the  peace  of  1 783.  Of  the 

irst  point  in  particular,  there  is  this  evidence . In  a  public  dis- 

i  >atch  to  congress,  gen.  Washington  declared,  that  the  people  and 
rmy  were  becoming  tired  of  the  war,  and  that  if  Cornwallis  had 
jot  been  captured  at  Yorktown,  he  could  not  have  answered  for 
he  issue... .now  we  all  know,  that  the  capture  of  Cornwallis  could 
ot  have  been  made,  without  the  aid  of  France.  If  there  should 
e  any  doubt  on  this  point,  I  refer  to  the  speech  of  Robert  God- 
I  ie  Harper ,  on  the  petition  of  the  daughters  of  the  count  da 
rasse,  delivered  to  congress  when  it  sat  in  Philadelphia.  It  is 
eplorable  that  any  necessity  should  exist  for  thus  asserting  what 
ever  ought  to  have  been  disputed;  but  as  ingratitude  was 
nee  the  reward  of  France*  it  is  a  duty*  to  renew  at  this  time, 
ie  remembrance  of  those  services. 

Ihe  commercial  and  exclusive  privileges  with  both  nations 
ijoyed  under  the  treaty  of  1 778,  were  of  importance  to  France. 

1  peace,  and  necessarily  invaluable  as  soon  as  the  war  of  1 793 
roketmt;  of  course  her  conduct  was  proportionable-  friendlr 
.  c!rcumsPfct.  Until  July,  1793,  the  executive  had  not 
single  complaint  to  make  against  France,  and  then  the  com  - 
amt  made,  was  in  consequence  of  the  retaliating  decree  of 

?,,,  1  ytar‘  the  message  to  congress,  cf  December, 
J3,  Washington  said....“  the  representative  and  executive  bo- 
■esot  trance,' have  manifested,  generally,  a  friendly  attach- 
■  ent  to  this  country  ;  have  given  advantages  to  our  commerce 
ad  navigation  ;  and  have  made  overtures  for  placing  those  ad. 
'images  upon  permanent  ground. 

1  As  soon  as  royalty  was  abolished,  France  opened  ail  its  ports 
i  Americans  and  placed  them,  as  to  rights  and  duties,  upon  a 
ioting  with  its  own  citizens. 

As  soon  as  our  government  complained  of  Genet,  his  conduct 
"m  disavowed ,  and  another  minister  substituted, 
r  ranee,  in  short,  allied  to  this  country,  by  friendship  and  by 
iattes;  having  no  friends  in  Europe;  assailed  from  without 
the  greatest  combination  of  powers  that  ever  was  formed 
u.vuised  and  a  prey  to  famine  within.. ..had  every  reason  to  re- 
J  CG(tt  t:ie  idea  -  hat  it  had  a  friend Amcrzra.  and  every  vrr 


I 


84 


tree  to  strengthen  the  existing  ties.  Genet,  I'  auchet,  and  Adet, 
severally  proposed  to  form  even  a  more  favorable  commercial 

treaty,  than  that  of  1778.  .  .  . 

But  the  friendly  disposition  of  France  was  evinced  m  a  num¬ 
ber  of  other  instances,  too  remarkable  not  to  be  mentioned.  On 
the  4th  of  Tune,  1794,  it  announced  the  measures  it  had  taken  to 
obtain  the  release  of  our  citzens,  captive  in  Algiers  and  to  es¬ 
tablish  a  peace  between  that  regency  and  the  United  States. 
September  following,  the  Washington  administration  answered, 
that  this  friendly  aid  of  France,  would  strengthen  the  ties  uniting 

the  two  republics.  .  .  .  .  .  .  .  * 

This  transaction  is  the  more  striking,  when  it  is  contrasted 

with  the  fact,  that  it  was  by  the  agency  of  the  British  govern- 
went  the  Barbary  powers  were  engaged  in  hostility  to  us,  and  ot 
consequence  the  cause  of  all  our  injuries  and  tributes  paidsince. 

_  -  ,  .  .  i  TVT  1 _  4  *r(\A  Virannf*  mQflP  mmiWnSatlOn  tO 


consequence  me  cau&c  ui  -  *  •  „  . 

On  the  18th  November,  1794,  trance  made  compensation  to 

the  Americans  detained  at  Bordeaux  by  an  embargo  ;  and  repeal- 
"  ,  ~  neutral  commerce,  excepting  that 


tlie  Amencans  aacuiicuati.tnucuuc.^  ^  . 

ed  all  existing  decrees  against  neutral  commerce,  excepting  that 
relating,  to  enemy’s  property,  and  this  property  it  declaxcc  .it 
would  exempt  from  seizure,  if  England  would  respect  the  pnn- 

ciple ;  and  .  ,  . 

On  the  3d  January,  1795,  even  this  decree,  subjecting  encm) 

property  to  seizure,  was  repealed. 

In  the  same  year,  France  voluntarily  declared  it  would  int  1 
fere,  to  obtain  from  Spain  the  free  navigation  of  the  river  Mis¬ 
sissippi,  for  our  citizens  ;  asked  whether  the  Flor.das  would  b. 
useful  to  us,  and  intimated  that  we  might  obtain  them  withou 

any  equivalent.  .  ,  .  .  .  , 

The  Washington  administration  instructed  its  mmistei,  n 

Mav  1794,  to  assure  France. ...that,  “the  president  felt  ai 
anxious  solicitude  for  the  success  of  the  French  revolution 
♦hat  he  preferred  France  to  all  other  nations  as  a  friend  and  a  } 
lhat  he  retained  a  grateful  sense  of  the  important  services  ren 
dered  by  France,  to  America  in  its  revolution. ...and,  that,  al 
though  neutrality  was  preferred  in  the  present  war,  m  case  th< 
United  States  embarked  in  it,  it  would  be  on  the  side  oj  i  ranee 
and  against  her  enemies,  whoever  they  might  be.  And,  assus 
pi  cions  may  be  entertained  of  the  object  ot  Mr.  Jay  s  mission 
x'ou  are  to  declare  that  the  motives  of  it  are  to  obtain  compete 
sation  for  our  plundered  property,  and  restitution  of  our  forts. 

Such  were  the  friendly  dispositions  of  France,  prior  to  th 
adoption  of  the  British  treaty.... and  such  were  the  avowed  sen 
tirnents  of  our  government :  you  will  presently- learn  the  retail 
that  was  made  for  the  one,  and  the  sincerity  of  the  other. 

2.  Of  the  conduct  of  England ,  it  would  be  perhaps  sufficii* 
to  savl.it  was  the  reverse  of  that  of  France  :  the  instance! 
however,  will  be  noted.  Passing  over  the  scenes  of  our  reve 
lutionary  war,  in  which  Americans  were  hunted  down  as  it  the. 
were  wild  beasts....we  find,  that,  the  peace  was  scarcely  d* 


85 


cltUed  in  l/8o,  when  it  was  violated ;  the  negroes  of  our  plan- 
teis  Aveie  cartied  off,  in  express  violation  of  treaty,  and  the 
forts  within  our  territory  were  forciblv  withheld  from  us  for 
seventeen  years  after  they  should  have' been  surrendered.  ’But 
the  enmity  of  the  British  was  not  confined  to  those  acts.. ..they 
stirred  up  and  aided  the  Indians  to  butcher  our  defenceless  fron- 
tier  settlers... .their  officers  guided  the  savage  operations,  and 
British  soldiers ,  disguised  as  Indians,  assisted  in  the  indiscrimi¬ 
nate  massacre  of  our  people,  of  every  age  and  sex.  These  facts 
are  not  stated  at  hazard  :  the  speeches  of  lord  Dorchester  the 
correspondence  of  general  Wcujne,  and  even  the  instructions  to 
John  Jay,  emphatically  establish  the  truth  of  these  infamous 
proceedings.  The  correspondence  of  the  executive  with  ou- 
minister  to  France,  also  proves,  that  the  British  instigated  the 
Spaniards  on  our  south-western  frontier  to  send  the  Creeks  and 
other  Indians  to  butcher  our  people  in  that  quarter.  And  a  let 
ter  Irom  the  administration  to  Mr.  Jay,  declares...  “  Although 
we  cannot  prove  that  the  British  have  been  tampering  with  the 
people  of  Kentucky  and  in  the  neighborhood  of  Pittsburgh  to 
encourage  them  to  revolt  against  the  general  government ’•  it 
has  been  boasted  of  by  them,  and  an  expectation  of  such  sun- 

them”#USPeCted  t0  llUVe  *JeCn  excitecI  '«  the  breasts  of  some  of 

On  the  ocean,  the  British  committed  outrages  of  as  deep  a 
dye.  Orders  were  secretly  issued,  under  which  hundreds  of 
our  vessels  were  captured,  the  cause  of  which  was  equally  un¬ 
known  to  their  owners  or  to  government.  When  Mr.  T.  Pincknev 
applied  to  the  British  ministry  for  the  release  of  our  seamen,  if- 
is  believed  there  were  between  two  and  three  thousand  Americans 
attained,  then  forced  to  serve  in  the  British  fleets. 

I  believe,  i  may  with  safety  affirm,  that,  besides  thus  plunder¬ 
ing  our  property  and  enslaving  our  citizens,  official  evidence 
L.U1  Pro,hiccd  to  shew  that  it  was  Britain  instigated  the 
Algerines  to  follow  their  example.  Even  Mr.  Harper,  warm 
f  ,'e  away®  ,'vas  m  t‘is  friendship  for  the  English,  instead 

-ursTnthf  Khr,rfintfe'!erenTCCJith  the  A'Serines>  evidently  con. 
rs  in  the  belie,  of  it . In  his  speech  upon  the  British  treaty 

md  as  an  argument  m  its  favor,  lie  said....“  Britain  has  great 

mtrT-  S°  “Uih  S°aSt0  have  directed  the 
-rms  of  the  late  truce  between  that  state  and  Portugal:  this 

nfluencc  is  so  great  as  in  a  considerable  degree  to  direct  their 

ause'CofIid  'l  ha$  i1WayS  b,eel’  reSarded  as  onc  the  primary 
mr  ships.”  dtpredatIons  the  Algerines  have  committed  upon 

flic  complaints  of  our  government,  in  consequence  of  these 
,  ?es’  w.ere  Seated  with  insult:  as  is  evident  from  this  pie 
‘ge  in  a  letter  from  the  Washington  administration  to  Mr. 

of  *"  n,m<'  ef  '°l  ™  hr  -he  MM>  or 


86 


T.  Pinckney,  dated  September,  1 793...,“  It  Is  with  concern  we  aid 
obliged  to  observe,  that,  so  marked  has  been  the  inattention  oi 
the  British  court,  to  every  application,  that  has  been  made  to 
them,  on  any  subject ,  by  this  government  (not  a  single  answer, 
we  believe,  having  ever  been  given  to  one  of  them,  excepting  m 
the  act  of  exchanging  a  minister)  that  it  may  become  unavoida¬ 
ble  in  certain  cases,  when  an  answer  of  some  sort  is  necessary, 
to  consider  their  silence  as  an  answer... .perhaps  it  is  so  intended. 

So  hostile  indeed,  was  the  conduct  of  England,  that  even 
Timothy  Pickering  was  compelled  to  acknowlege  it....44  that  our 
commerce  (said  he,  in  a  letter  to  the  French  minister)  has  been 
interrupted  by  the  armed  vessels  of  England,  and  sometimes 
with  insult,  we  certainly  shall  not  attempt  to  deny :  it  was  be¬ 
cause  of  these  aggressions,  preparations  for  rear  xverc  made. 

Redress  having  been  refused,  at  that  period,  congress  laid 
an  embargo..  ..which  was  avowedly  to  operate  on  England  alone  : 
a  non-intercourse  act  passed  the  house  of  representatives,  and 
was  only  arrested  bv  the  casting  vote  of  the  vice  president ;  a 
sequestration  of  British  property  was  strenuously  advocated ; 
and  the  congress  seemed  well  disposed  to  assert  the  1  lghts  and  1 
avenge  the  wrongs  of  the  country. ...but  they  were  checked  in  the 
honorable  purpose :  and  the  Washington  administration  took 
the  chief  justice,  from  the  bench,  and  sent  him,  who  was  an  avow¬ 
ed  partizan  of  England,  as  envoy  extraordinary  to  that  country. 

I  need  not  recapitulate  the  disgraceful  and  the  iatal  effects  which 
proceeded  out  of  that  measure  ;  perhaps  it  is  to  that  alone  we 
owe  all  the  misfortunes  which  we  have  suffered  since. 

Such,  then,  was  the  conduct  of  England,  and,  when  I  say 
that  it  was  the  reverse  of  that  of  France,  the  fact  cannot  be 

questioned :  .  ,  .  , 

France  granted  us  commercial  privileges... .England  plunder¬ 
ed  our  trade,  and  impressed  our  citizens. 

France  interposed  to  open  the  Mississippi  and  terminate  oiu 
disputes  with  the  Spaniards.... England  instigated  them  to  per¬ 
severe  in  their  hostilities  against  us. 

France  interfered  to  release  our  citizens  captive  in  Algiers.... 
England  urged  the  Algerines  to  enslave  them. 

France  attended  to,  and  granted  redress  upon  our  complaints...# 
England  refused  all  redress,  by  a  contemptuous  silence. 

In  such  circumstances  as  these,  it  no  other  existed,  our  go¬ 
vernment  was  bound  by  the  common  principles  of  policy  and 
justice  to  treat  France  at  least  with  liberality.  But,  with  how 
much  more  liberality,  ought  it  to  have  acted  to  that  France, 
which  in  our  distress  had  rendered  us  such  essential  services, 
and  which  now  in  turn  asked.. ..not  for  any  sacrifices ,  not  that 
we  should  support  them  as  they  supported  us.... but,  the  obset  v~ 
ancc  of  treaties  and  the  solemn  pledges  oj  friendship ,  which  ivel 
gave  when  in  distress  ourselves  !  With  shame,  be  it  told,  how-1 
ever,  that  our  government,  at  the  very  moment  it  avowed  friend* 


87 

terminated  in  hostility  a^nstherTand  Instead 

thr^ir^sSs^r:ffi:ctually 

As  it  will  be  useful  to  defer  for  another  letter  an  „™'  • 

of  the  two  remaining  points,-  I  conclude  he Iresenl Inr  ?? 
die  following  description,  of  the  condition  of  “  "’.n''b 

Mr*  Giles  in  the  debate  on  the  British  treat-  •  it  n  ’  fi  ,  • -v 

to  appreciate  the  honor  humanity  o  a  xt  Ar enahle  you 
istration,  which  whils^it  ronn  '  ’  *  A\  Siatltu^e  of  the  admin- 

u.  ,0  ';0“uic  ,5'",r ,h,' 

were  unfortunate  in  their  only  efforts  “  the,  French 

^rnment  in  its  form  and  principles  to  our  ow„T  g°‘ 

rst  ^S^c3>Jh?r;  agaT - 

dern  times.  The  war  was  nf  tlf  d  ^  thf  history  of  mo- 

character,  and  a  series  of  victorieI°threwOC ’'I  “"if  desPerate 
tion  of  that  country.  On  March  1  '  th  ^  subJ“ga- 

'eated  on  the  Roer  •  on  the  i  athti  ’  ?  hrench  were  de- 

sut;  on  the  4th  of  April  Dnm  'e  rL'v°h  in  La  Vendee  broke 

19th,  a  rebellion  brokl  out  in  the  departmeTof^r  “my!  Ma-V 

he  30th,  another  at  Lyons....on  Ji  ll'lOth  Co  ide  °‘re  *  ^  °,U 
m  the  27th  Mavence  'on  the  oo.l  t>  Conde  surrendered, 

ft  ft  «. *, Ti oi 

“K;,  f"'  & 

zszxtr-  * 

ft..,  The  ItuTCl, 

Marseilles,  and  the  departments  rfVaucfi  ^dTl’  m  ’ 

‘  nCu ’a"1  s  10rt’  ,vas  convulsed  with  intestine  ,V  •  -E  ^one. 
•vtended  to  the  very  heart  of  lntestine  divisions,  that 

-most  formidable^Srmal  pressu^Tnd0^  U“der 

is,  was  a  prey  to  the  horrors  of  famine.’^  addltlon  to  ai’ 
■April  12,  1809. 


letter  XVII. 

»iich  France hadgeII?oustU-Umeftate^  the  imPortant  services, 

’ 'vices  that  e^^KI^,dePed.,“*Ifro“  ™  to  1795....’ 
endship.  1  Our  gratitude,  or  at  least  to  our 

;  J--. . which Ijuditliollo1}^  011^  olltraSes  committed  by  Eng- 
‘  gotten  until  t ty  "  “  ,C™  "<* 


88 


l re-rted  her,  in  the  midst  of  her  difficulties,  with  ingratitude 
treatea  ne  ,  ;nofPafl  0f  receiving  redress  from  hng- 

have  acquiesced  in  "her  maritime  usurpations,  and  thus 
laid  'the  foundation  of  all  our  subsequent  dishonor  and  com- 

meidal  misfoit  tf,e  services  of  France,  to  remain 

?  rn  '  her  enemv  and  bv  the  injuries  of  England  not  to 
a  Ut  her  Gainst  France....how  much  more  strongly  were  we 
bound  by  the"  solemn  injunctions  of  existing  treaties,  to  maintain 

“"meTthTwa^cornmenced,  in  1793,  we  had  no  treaty  with 
England,  we  were 

^tadttStfe^of'the  most  forcible  and  binding  character. 

Those  treaties  were  ratified  in  1778,  under  circumstances  so 
.  hose  tie.  if  governed  by  sinister  motives  in 

favorable  to  b  ranee,' lira , ,  8  advantage  of  them  ; 

su«  «“■“[> '-i  -  is b  «•  sr£S3?34 

r-fhadanrofirtedduri.4  our  revolution  ;  France  fulfilled  her  en- 

d  ements  and  expected  that,  when  necessity  demanded  it, 
gage  me  iu  ,  i  „  177a  to  1793,  the  stipulations  01 

™  Jor,W  when  the  war 

solemn  engagements.  It  “hid. 

fulfilling  our  engagements,  've^iolat^e,  ^  ^  acquitted  for 

thTs  breach  of  moral  andjpolltical  justice ;  It  was  the  act  of  a 

people  hr  a  constitutional  way,  it  is  true,  dismissed  those  whe 
p traced  them.  The  stigma  however  remains  on  our  history 
and  tt  might  "to  be  looked  at,  in  order  to  avoid  a  recurrence  o 

£U  bi  the'present  letter,  however  desirable,  it  is  not  practicable 

l?  %  4-j.£  jyars 

ulLtWskf  treaties,  slid  to  reoder  the  lojiietice  on  thjs  pod 
the  more  obvious,  I  quote  the  following  principles  of  the 

*XglmSS3£SZ2*  he  tvh.  vioiste.  «»»,« 

fates  the  laws  of  nations....doubly  guilty,  he  injures  his  . 

and  wounds  the  whole  human  race.  .  ,  o-oven 

tc  Treaties  between  nations  are  binding,  although  th  g 
ment  of  either  may  be  deposed,  and  another  form  substitute, 


#  “  °neparty  to  a  treaty  has  no  right  to  interpret  it,  at  its  will 
to  the  injury  of  the  other.  ? 

“  When  two  nations  engage  in  war,  a  third  or  neutral  state 
other°  n&ht  t0  a  t£r  thC  C°ndltlon  of  one  to  the  Prejudice  of  the 

.  .  “  ^h<:n  a  natlon  has  formed  engagements  by  treaty  with  one 
state,  it  is  no  longer  at  liberty  to  enter  into  engagement*  with 
another  state,  inconsistent  with  the  first.  ^  h 

“  If  a  neutral  enters  into  a  treaty  with  one  belligerent  and 

renf°rmi*ng  °nC  W!th,the  other  belligerent,  it  becomes  par. 
tial  and  loses  its  neutral  character.5’ 

mentnof°ft^ eFarlyK  CtS  °f,  °'-r  Sovf  nment,  upon  the  commence, 
nent  of  the  French  revolution,  shewed  at  least  an  indifference 

respecting  ns  issue.  _  If  governed  by  friendly  dispositions,  it 

uould  have  sent,  as  it  did  when  it  sent  Mr.  Jav  to  London  a 

minister  to  France,  if  not  friendly  to  the  resolution,  at  leLst 

not  disposed  to  assist  the  coalition  against  it:....but,  in  annoim- 

■  ng  Mr.  Governeur  Morris,  an  avowed  foe  to  the  Frencl/cause 

lure, °;telTfy  nPeC,ei  0fi  £°pUlar  rightS’  the  administration  in- 
lured  itself  and  insulted  France.  His  appointment  was  opposed 

:n  the  senate,  expressly  on  account  of  the  man’s  inveterato  mo¬ 
narchical  tenets,  and  his  hatred  of  free  government.  The  ore- 
hctions  respecting  Mr.  Morris’s  ministry  were  realized,  France 
lemanded  his  recal,  but,  when  our  government  complied  it 
issurecl  the  minister  that  it  did  not  disapprove  his  conduct! 

In  April,  1793,  the  president  presented  to  the  heads  of  de 
=tsa  senes  of  questions,  the  motives  for  which  the  quel 
,  ^emselves  plainly  discovered  :  amongst  the  most  remarks 

hnidTr  these""'vhether  a  minister  from  the  republic  of  France 
hould  be  acicnowleged  ?  And,  w-hether  the  treaties  with  Fran-e 

,  e  obllSat°ry .  The  principles  of  the  laws  of  nations,  quoted 
-.bove,  could  not  have  been  unknown  to  the  government  I  -m 
warranted,  therefore,  in  saying,  that  the  iere 

h°pUFr  °n,th0Se  fcVlnccd  a  disposition  not  to  acknowlege 

he  French  republic,  because  it  was  at  the  time  surrounded  wub 

|anbeio,  and  to  refuse  to  fulfil  our  treaty  engagements,  because 
ey  were  important  to  France  and  disagreeable  to  England 

a  say  theTas iT*  a  Proclamation  of  neutrality  was  issued.... 

1  ^  *  ,f  leaS  ’  U,  was  unnecessary,  and  its  terms  but  too  une- 
uivocally  spoke  the  anxiety  of  our  government  to  evade  the  st:- 

ulations  of  our  treaty  with  France:  ..  U 

Le  Frenchcnl5'  °-  ^  we  fere  bound  to  maintain  and  protect 

ask  h  hf  n,CVn  dr""3 1  ,FranCe  had  ‘he  generosity  not 
onedir  /  f,  ma  of  this  stipulation,  they  voluntarily  aban- 
oned  ,  and  with  a  candor  that  is  rare  in  the  transaction.;  of  r  a- 

le  d’;!';ir";°re  we  °ught  at '/east  to  have  abstained  from  aiding  in 

■d  British  m  °  l^os?  co'omes  :  but  our  government  permit- 
™,sh,  ofr‘cers  to  land  pn  our  shores  to  purchase  cavalry 
-  ses,  and  to  transport  them  to  the  West  Indies,  to  enable  the 


90 


British  troops  to  conquer  the  French  islands:  our  government  . 
also  consented  to  surrender  the  right  of  supplying  the  French 
colonies  with  provisions.  In  both  instances,  the  interests  of 
Fi  ance  were  palpably  sacrificed,  in  violation  of  the  spirit  of  our  ; 
treaties  with  her:  it  was  pretended,  that  it  would  be  violating 
our  neutrality  to  return  to  the  French  a  part  of  the  arms  which 
they  had  sent  us  during  our  revolution  ;  yet  the  administration  : 
did  not  prohibit  the  exportation  of  cavalry  horses,  to  aid  in  re¬ 
ducing  the  colonies  we  were  pledged  to  protect.  It  is  necessary  s 
tc  read  the  nation  to  the  transactions  of  those  days.  They  are 
painful  to  remember,  but  the  pain  proceeds  from  their  being 
true. 

Bv  the  treaty  of  1778,  we  were  bound  to  admit  French  crui-  j 
zers'  with  their  prizes  into  our  ports  ;  and,  to  exclude  from  i 
them,  not  only  the  prizes  made  by  cruizers  of  the  enemies  of  j 
France,  but  such  cruizers  as  had  captured  French  property. 
Yet,  not  only  were  British  cruizers,  that  had  captured  French  j 
ships,  admitted  into  our  ports  to  victual  and  refit,  but  in  some 
instances  the  prizes  themselves  were  brought  in,  fitted  for  sea, 
and  sent  to  cruize  against  the  French.  From  1794,  a  British 
squadron  was  constantly  cruizing  off  or  within  Chesapeake  bay, 
under  admiral  Murray  ;  its  ships  following  such  French  vessels  i 
as  departed  from  our  ports,  making  prize  of  them,  and  then 
returning  within  our  waters.  The  government  was  well  ac¬ 
quainted  with  those  violations  of  treaties,  and  of  our  neutrality,! 
but  it  did  not  interfere  in  a  single  instance,  until  the  British  ; 
had  accomplished  all  they  could  have  desired. 

By  the  treaty  of  1778,  we  were  bound  to  permit  the  consuls  t 
of  France  to  take  exclusive  cognizance  of  prizes  brought  into  i 
our  ports  by  French  cruizers;  yet,  in  June,  1793,  in  violation  j 
of  this  treaty,  and  treaties  are  the  supreme  law  of  the  land,  the! 
courts  of  the  United  States  were  directed  to  take  cognizance  of 
those  prizes,  and  the  French  consuls  were  thus  deprived  of] 
their  privileges.  The  consul,  Duplaine,  at  Boston,  had  taken 
charge  of  a  prize,  according  to  treaty  ;  he  was  three  times  in¬ 
dicted  before  the  state  court  for  it,  and  each  time  the  jury  re- 1 
fused  to  find  a  bill  against  him  :....the  administration,  unable  to 
compel  him  to  surrender  the  rights  of  treaty,  or  the  jury  to 
violate  the  supreme  law,  deprived  Duplaine  of  his  consular 

authority !  -jj  I 

Besides  those  open  infractions  of  treaties  in  relation  to  prizes, 
the  collectors  of  our  ports,  the  judges  of  our  courts,  district 
attornies,  and  marshals,  all  subservient  to  the  wishes  of  Mr- 
Alexander  Hamilton,  left  no  means  unemployed  to  harass  arx 
perplex  the  consuls  of  France  :  the  oaths  of  British  subjects 
and  seamen  were  received  as  conclusive  testimony  to  support 
the  vexatious  detention  of  French  cruizers  and  prizes. ...whilst 
every  aid  and  countenance  was  covertly  extended  to  Britisi  ( 
cruizers. 


Such  was  the  conduct  pursued  by  the  administration,  prior  to 
menth  °f  Bmish  treaty'  Before  I  notice  this  histru- 

z^cr^riTv:  rte^uplicit>’  °f  the  ^iat^ 

respecting  it.  At  the  moment  Prance  was  rendering  us  every 
j as-ic-,  and  when  England  was  violating  our  dearest  rights  •  at 
It  ,T  our  government  was  obliged  to  acknowfe-e’the 
one  and  congress  were  preparing  for  war  to  avenge  the  other - 
no  man  could  have  believed  that  the  administration  was  p-e-  r’ 
.ng  to  injure  France  and  to  submit  to  England  ■ Scions 
however,  were  excited,  and  they  were  increased  by  the  zeal’ 

lin"  acted  To  iV0  '"T*"  them-  °ur  in  Franci 

til  ?  dr  tA°Tlnfdrm  the  government  of  that  country  ♦hat 

r  ”ril^slpn  °f  Mr.  Jay  had  but  one  object,., .to  obtain  redress 
fjr  tie  injuries  w/nch  England  had  committed.  The  same  de-la 
a  . on  was  made  in  the  senate,  and  announced  to  the  pub  k 

hei  h  dmn'si  “lv  equalled  bv 

iheir  indignation  at  finding,  that  Mr.  Jay  had  not  only  no't 

obtained  any  redress,  but  had  sacrificed  our  own  rights  the 

rbligations  we  were  under  to  France,  and  even  the  most  vdP 

lie  branch  of  our  own  export  produce. 

lhe  British  had  issued  an  order,  in  Tun'"  irQ?  f™-  tU 

rose  of  starving  France,  to  seize’ all  IZ’zl 

JmSr^e^laden  Whh  Corn\M or  tuea/.... hundreds  of 
n  l  ?  ?  ."’ere  caPtured  under  this  order,  and  the 
i  thefodowinr  't  m,Strat'0n  re.monstrated  against  this  measure, 

^,une’  “  is  so  manifestly  contrary  to  the 

bserfe  “ista.’-n0thinS  m0re  WOuld  be  “ces«iy/than  to 

Uc^’in  which°we  wnJS  dirmdy  t0  draw  us  from  a  state  of 
larnctcr  !„’,e  w‘shlnS  t0  remain.  It  is  an  essential 
eatvh  to  L  .r  y,  t0,  furnish  no  aids  (not  stipulated  by 

.the  other  if'w’  WC  are  not  e(lua%  ready  to  furnish 

•  It  we  permit  corn  to  be  sent  to  Great  Britain 

J.e.  e(lually  bound  to  permit  it  to  France.  To  restraint' 
ould  be  a  partiality  which  wou/d lead  to  war  with  France  •  and’ 

2  TST*  “  ?"»'“»»  Cr‘Z;“t 

•ZZir  Z,  ?  tSrr-  .1.1. 

•hat  i  i  /  w^lch  she  would  not  be  the  dupe  -md  op 
houMra  e  grOU,nd  COuld  we  otherwise  explain  it!  Thus 
■  itaiu,  into^w0",-”  plUnged’  by  this  unauthorised  act  of 

n^of  F.nrfand^h*  fand  ‘n  1793’  against  the  usurpa- 

ience  that  the  -  'l  b-  -S°  >apid  'vas  lhe  progress  of  British  in- 
1795  bv  M  administration  abandoned  this  honorable  ground 

■don  fie  dmaV-  i lrCaty-  After  bavmg  made  the  abfve  de- 

merely  cl  u  ^l,  atl°.n  SU1TCndered  our  riSlu  of  conveying, 

>  cot  n,  four,  and  meal,  but  every  description  of  frovi  ■ 


sian3y  to  France.  It  acknowleged  the  right  of  England  to  seize 
all  our  vessels,  laden  with  provisions,  and  thus  sacrificed  not  only* 
our  own  rights,  but  concurred  in  the  project  of  starving  our  faith¬ 
ful  ally  France,  and  evinced  a  carelessness,  whether  its  govern¬ 
ment,  unwilling  to  be  the  dupe  of  our  artifice,  declared  war 
against  us  or  not. 

By  the  treaty  of  1778,  France  was  bound  to  permit  our  ves¬ 
sels  to  trade  in  all  property  whatever,  except  actual  contraband: 
this  was  highly  favorable  to  England.  By  Jay’s  treaty,  wesu* 
rendered  the  right  to  protect  French  property,  to  the  manifest 
injury  of  France,  and  contrary  to  the  laws  of  nations. 

By  the  treaty  of  1778,  we  had  a  right  to  convey  to.  England 
naval  stores  and  all  other  articles  not  directly  used  in  war .  4 
privilege  of  great  importance  to  England.  By  Jay’s  treaty,  we  j 
agreed,  that  to  supply  France  with  naval  stores  was  unlawful, 
the  injustice  of  this  to  France,  you  can  all  appreciate. 

By  the  treaty  of  1778,  we  guaranteed  the  French  colonies:  j 
but  by  Jay’s  treaty,  we  agreed  that  to  supply  them  with  provi- 
sions  or  carry  their  produce  to  Europe  was  unlawful..;. the  per¬ 
fidy  of  this  was  increased  by  our  agreeing  to  supply  the  colonies 

of  England .  _  .  . 

Under  the  treaty  of  1778,  the  French  sold  their  prizes  in 

our  ports,  but  as  soon  as  Jay’s  treaty  was  ratified,  the  French 

were  prohibited  from  selling  them. 

Bv  the  treaty  of  1778,  our  citizens  had  a  right  to  serve  as  j 
volunteers  in  the  armies  or  fleets  of  England:  by  Jay  s  treaty, 
our  citizens  were  forbidden  to  serve  in  the  fleets  or  armies  of 

France.  . 

Of  the  baseness  and  perfidy  of  those  acts,  there  is  no  lan¬ 
guage  sufficiently  strong  to  convey  a  just  sense;  they  ceitainl) 
afforded  full  ground  to  the  French  minister  Adet,  for  declaring, 
that,  u  under  the  cloak  of  neutrality  our  government  presented 
a  dagger  to  England,  to  cut  the  throat  of  a  faithful  ally,  and 
participated  in  the  tyrannic  and  cruel  rage  of  England,  to  plunge 
the  French  people  into  the  horrors  of  famine.”* 


*  The  paper,  presented  by  Mr.  Jay  to  the  British  government,  was  more  like 
the  supplication  of  a  tributary,  than  the  remonstrance  of  an  independent  an. 
inured  nation.  The  envoy  declared  that  he  placed  his  principal  reliance  uponi 
his  maiesty’s  benevolence ;  and  it  is  therefore  not  astonishing,  that  instead  cl, 
redress  we  received  an  additional  share  of  injury.  That  the  injury  was  reccivj 
•ed,  will  be  seen  from  the  following  statement  of  the  neutral  innocent  property, 
captured  and  sent  into  England,  within  the  five  months,  ending  November, 
3795,  that  is  within  the  very  first  year*  after  Mr.  Jay  had  made  his  treaty : 


Quarters. 

Wheat,  -  104,760 

Rye,  ....  9,110 

Barley,  -  200 

Oats,  -  l,80o 

Indian  corn,  -  •  -  8,573 

jneaJ,  (bushels)  -  5,806 


Barrel 

Flour,  • 

38,22: 

Meal,  - 

.  651 

Rice,  - 

4,06- 

Do.  (bags)  - 

.  1,02' | 
•t  At)' : 

Ship  bread,  (bags) 

93 


,  was  the  e*P«s8ion  of  censure  confined  to  the  nation,  wc 

conr),  h,USflnjUr  ,i  ^  Brhish  Annual  ReSi«er,  noticing  the 
conduct  of  our  administration,  expressed  these  emphatic  semi- 

WWTh  »USh  llttle  WaSJt0,  have  been  exPected  from  national  ?ra- 
Mude  ,t  was  supposed  that  national  honor  would  have  prevented 

the  American  government  from  seizing  the  opportunity,  whilst 

™  ";as  ^“Sgiitig  for  a  political  existence,  to  throw  the 
tinned  States  into  the  arms  of  its  most  potent  enemy.” 

own  rflU'dbe  usel?,s.s  for  me  t0  comment  upon  those  facts....vour 
all  its  rl  fC  10^S  WJ  T  ?xPose  t^le  conduct  of  our  government  in 

and trfilvT’ %’.  “  SUfldent  l°  sa^’  .that’  b>  its  h>P°crisy 

P  y  to  Fiance,  and  tame  subserviency  to  England  the 

administration  disgraced  itself  and  involved 'the  country  in  all 

its  subsequent  embarrassments.  -  * 

■*[ -Tnfted  -the  "T  Solemn  en8aSements  with  France,  and 
by  open  °*  them  Validi* 

wi^npn!‘,vio!ate,d,tho  >"s  ?f  nations,  by  entering  into  a  treaty 
»uh  England  whilst  it  declined  to  enter  into  one  with  France'- 

JJn,  ng  lnt°  ?nSagcments  hostile  to  those  already  in  force  : 
c ,  by  interpreting  our  treaty  with  France,  at  its  will,  in  ord-r 

to  cover  the  violations  of  it.*  ’  omer 

tr,,RtflcCt  Up°n,  the  rtlative  conduct  of  France  and  England 

treated tUS’a,ar  UPon.„the  condition  of  France  when  we  thus 

r^rt  ru  W,U  ,110t  be  astonished  *at  France  ceased  to 

■n  1  r  r.]Shts?  or  that  our  commerce  became  the  prey  of 

pec  d  raPeCU>-  ,  ?°  ^--.consequences  could  have  bUex- 
P  cted....we  cajoled  and  injured  the  one,  and  submitted  with 
disgrace  to  the  outrages  of  the  other. 

are  n?b’5ht  m**  reSt  c!uestion'  under  discussion,  but  there 
other  evidences,  deserving  of  your  notice,  which  prove  •... 

T  ™r  present  commercial  embarrassments  originated  in  the 

Whe"  En  °f-  °Ur  tW°frSt  ^ministrations^ 

England  and  Russia  commenced,  in  1793,  their  wa” 
Against  neutral  commerce,  it  has  been  alleged  and  never  ha* 

ted  Stated  t’  a"d  Denmark  Proposed  to  the  Uni- 

the  rich ts  of  the  'Vfh,tbem  t0  suPPort-  with  force  if  necessarv, 
me  rights  of  the  neutral  flag....and  that  the  American  admin 

istration  absolutely  refused.  Sweden  and  Demnari:  then  u,"ed 
rights°Wn  f°rCeS’  alK  SUCCeSsfu"y  resisttd  cbe  violations  of  their 

-ourts^f  Swe^l  ^Ul'V,|  IT93’  p'nK*and  and  Russia  notified  the 
;  rtsS  en,and  Denmark,  that  they  had  entered  into  en- 

«“Lb:  -“■*  *•  *•  «-  «tS 


*  See  appendix. „.E. 


94 

In  the  following  month,  Sweden  and  Denmark  returned  the 
following  answers 

u  As  the  independence  of  Sweden  in  a  great  measure  depends 
Upon  commerce,  it  is  impossible  that  she  can  consent  to  any 
thing  that  can  in  the  least  impair  it.  The  subsisting  treaties 
must  have  in  this  respect  their  full  and  complete  effect.  It  is 
expected,  in  consequence,  that  Russia  will  withdraw  the  orders 
it  may  have  given  to  the  commanders  ol  its  vessels  respecting 
the  commerce  of  Sweden.” 

“  His  majesty  (the  king  of  Denmark)  could  not  guess  the 
meaning  of  a  declaration,  that  in  no  way  concerns  Denmark, 
nor  of  a  proceeding  which  applies  the  principles  and  right  ot 
blockade  to  situations  which-  preclude  every  idea  of  the  kind. 
To  restrict  the  commerce  in  grain,  as  it  now  subsists,  is  a 
thing  quite  insignificant  to  the  cause  which  Russia  has  es¬ 
poused;  but,  it  is  not  so  to  Denmark,  because  it  involves  a 
sacrifice  of  her  rights,  of  her  independence ,  and  of  he i  trea¬ 
ties,  which  she  intends  to  maintain .  His  majesty  refrains  from 
entering  into  a  more  serious  examination  of  this  subject,  since 
Russia  has  thought  proper  to  reject  the  only  judge,  whom  Den¬ 
mark  could  acknowlege... .namely,  the  common  law  of  nations. 

Similar  ansvrers  were  returned  to  England,  and  thus  Sweden 
and  Denmark,  although  not  in  alliance,  as  we  were,  with  Fiance, 
had  the  courage  to  assert  their  own  rights:  their  declarations 
were  followed  by  the  employment  of  an  armed  force  to  protect 
their  trade,  which  they  did  with  complete  effect.  In  the  ear  /  • 
part  of  1793,  the  British  had  captured  a  number  of  their  ves¬ 
sels,  but  the  British  government  was  soon  after  not  only  com¬ 
pelled  to  compensate  the  injury  already  done,  but  to  pledge  \ 
themselves  to  respect  the  commerce  of  those  powers  in  future  , 
and,  hence  it  is,  that  in  the  subsequent  decrees  of  England,  we  , 
find  Sweden  and  Denmark  exempted  from  their  most  oppressive 
provisions;.... whilst  the  commerce  of  the  United  States  alone 
became  the  object  for  unrestrained  plunder. 

Let  me  now  contrast  the  conduct  ol  America  w  ith  the  abo\  e. 

On  the  7th  April,  1781,  the  principles  of  the  armed  neutrali- 
tif,  of  the  preceding  year,  were  solemnly  and  unanimously 
^adopted  by  congress. 

In  the  letter  of  Mr.  John  Adams,  to  the  states  general  oi 
Holland,  urging  them  to  join  France  in  supporting  America, 
he  stated  that  the  United  States  had  adopted  and  never  would 
abandon  the  principles  of  the  armed  neutrality . 

In  all  our  treaties,  prior  to  1794-5,  wre  incorporated  those 

principles. 

W e  w  ere  more  affected  by  the  decrees  of  England  and  Rus¬ 
sia,  than  Sweden  and  Denmark  together  :....vre  were  moie  capa¬ 
ble  of  commanding  respect  tor  our  rights:. ...we  had  an  immense 
commerce  to  maintain:. ...our  intercourse  with  France  v  as  more 


Advantageous  than  that  with  KncAmd-*  ,  v.  i 

character  to  establish,  and  the  refpect  of'ihT  ’  i’  national 

m  our  revolution,  to  preserve  by  our  conduct  "0rId’.  ^ired 
were  robbed  and  grosslv  insnLrl  ccjncluctas  a  nation  :....we 

demand  redress:... .and  we  were  nlerL  /!tain’  a?d  bound  to 
treaties,  to  serve  instead  of  injurmg  France  ^  r”?  by 

in  our  day  of  necessity  and  dimef-  vet  in’  ^  alI-y 

those  obligations,  our  administration  Jot’onlv  mPf  °f  aU 
sisC  as  Sweden  and  Denmark  hnH  ]  i  efused  to  re- 

acknowleged  bv  a  tre-itv  V  *  d  d°ne’  but  confirmed  and 
our  commerce  to  ruin  Ind  r?'7  UsurPati°™  that  subjected 
to  the  laws  of  nations  to  the  '  °.ui.ltr-'  to  disgrace.  Contrary 
and  to  our  most1%antSeKPleS  °f  ,*?  ?™ed  "eutralit^ 
ed  that  the  British  mitrhttabe  r  ’  cul'  administration  consent¬ 
ed  naval  store  con? idVri^  thn' ^  S{  laden  with  Provisions 
agreed  that  a  cdist  or  i8  •  T  frtlcles  as  contraband 
tion  :....it  agreed,  that  we  michr  h”)  be  bj?cIcaded  l:iY  prociama- 
rying  on  during  war,  a  Irade  not  '  7  preVented  from  car. 

neglecting-  to  make  nm  1  •  •  GPcn  to  us  in  peace:  and,  bv 

for* the  sa?ety“fl%Pam°ir  i^WhrVeVn  the 

ed  them  to  impressment.  *  ’  h^ly  cnmmaII7  abandon- 

istration  of  Mr^JeffeSo^co^13617  t0jd\ that  with  the  admhl- 
When  he  came  into  power  heT"?  the  rUin  °f  our  trade* 
in  every  way  that  the  commerr*1?^  °Ur  CGmmerce  harassed 
it  to  devise : . he  found  the  most  ^  0,UiS^  °*  ?n8Iand  induced 

of  nations,  the  most  solemn  eno-oo-  bacred  P1  maples  of  the  laws 

essential  rights  of  America  °^treatles>  and  the  most 

decessors.  And,  if  he  did  nm •  ^  and  sacr^ced  by  his  pre- 
tion,  place  the  external  affairs  0/°  106  Course  °*  administra- 
■condition  as  lie  IcfiSrt^  in  33  ProsP«™  a 

hypocrisy,  tameness,  and  wrfidl-  of  r“  was*  because  the 
iad  left  him  no  alternative  but' to  amt*^ ,nS  administrations, 
■rto  resist  it  at  some  sacrifice.  "  ‘  l°  submt  t0  outrage, 

the  moment  for  resistant . .  , 

ssailed  in  1700;  but  instead  of  re °Ui  riShts  were  first 
cquiesced  in  the  injuries  -md  ,“lstl.nS’  tbe  administration 
Ur  seamen  were  wi«C ^  our  own  confrT  fmd  ^  Wh«* 
artially  plundered ;  when  the  neutral  °uf,  Property  but 

avf  joined  us;  then  it  wa-  tu~f  ‘  .  J  tes  of  Europe  would 
»ade  with  honor  and  with  effect,  j/t'!  7?. C°U'd  h.av.e  been 
uc’»  a  host  of  British  merrha  +  lad  done  so,  it  is  very 

■nunes ;  hut  the  honest  ImLric,  "’°U,C  T  haVe  made  theh- 
.cted  to  ruin,  or  the  lt?f  • *n  >vouId  "«  have  been  sub- 

tvattons  would  have  been  felr^P^u  '  3t  t,lat  time>  s°me 
anporai  y  and  would  have  been  ’  JU,  they  'l'0llld  have  been 
j.cnt  safety.  The  opp0rtUnhv  h--P  7  COmpenSated  bt  subse- 
of  'bose  who  had  ],een  g’,  .  was  not  taken,  “  the 

£en  So,°mons  in  council,  and  Samp. . 


sons  in  combat,  were  cut  off  by  the  whore  EnSjand’’’;';r^^ 
f®  nrt  TO  be  wondered  at  that  the  commerce  of  the  country  was 
ruined  when  the  government  had  lost  the  faculty  of  maintaining 

UYt?seech  those,  therefore,  whose  fortunes  have  been  ruined 
,  maritime  plunderers,  to  attribute  their  disasters  to  the  policy 

mestic  privations  to  the  payment  of  foreign  tribute. 

April  10,  1809. 


letter  xviii. 

HAVING  extended  the  discussion,  cf  the  questions* 

.  .  i  form  thQ  subject  of  these  letters,  to  a  much  greatei 

Vnedh  than  I  originally  proposed;  I  will  closest  m  the  pre- 

?  letter  ard  endeavor  to  shew,  from  a  review  of  what  I 
sent  letter,  a^  nations,  as  well  as  men,  have  ad- 

haVe  rn  -mnrovma  Ae  r  rc  ative  conditions:....*.  That  Eng- 
nCln“e  C t3y interrupted  this  improvement  That 

Te  result  of  the  preset  war  must  be  favorable .to  the  rights  and 
interests  of  neutral  and  weak  nations  :....4.  g  ^ 

of  our  government  to  promote  t us  o^jc  \(  uf  each  other, 

We^^S^ka^&e?ful.  .  . 

and  o^P"';‘SraotiveSi  which  induced  men  to  associate  in 

tribesTand  to  form  nations,  impelled  them  as  nations  to  culti- 
tunes,  u  .  ,  .  N>ressarv  and  useful  as  tms  con 

vate  eommcmalinteixour  m  Ne«*«y  that  iguo 

“  controversies  omens  “““'T 

ly  to  regulate  then  cone  .  submit  to  moral  re? 

sk  assse*  “svit',' 


97 

other,  so  far  to  imitate  the  example  of  men  in  society  as  to 
adopt  a  regular  system  of  laws  to  protect  the  weak  ,„a!/ ’  ■  ? 
aggression ;  they  contented  themselves  with  withdr-.  -° 

he  rights  and  duties  of  states,  in  peace  or  in  war?  This  im 
provement  became  rapid,  as  soon  as  the  chanrtw  f  r  m" 
u-as  changed  from  military  to  commercial  by  X*  ^cove^Tf 
the  mariner  s  compass,  and  as  soon  as  printing-  beo-»n  tn  ^  ^ 

MdacivTv7ati0nj  i'1  ad™iced  with  the  increase  of  commerce’ 

imposing  character  from  thefeague  of  tt  “  ’T  *  ^  and 
As  earl V  as  the  14th  centurv  natLnl  .  "6? 

and  wars,  practices  characteristic  of  barbarism  ;  Ae^agre"^ 
hat  the  governments  and  armies  of  staffs  oh  i a  ?  aS[eeci, 
mi  .h»  «h.  people  of  e.eh  ft"  «  « 

rade  or  industry  of  the  other;  they  agreed  that  nriunt  'V 
nd  property  should  be  respected  •  and  that-  thlP  p|rsons 

ral  states  should  not  be  interrupted  in  their  commerce  and  In’ 
ercourse  with  either  bellie-erent-  TKlc  •  merce  and  in- 

»».  f„- sis"-;  i.T™"sr 

ae  use  or  supremacy  of  physical  force,  and  placed  nationals 
m  ely  nearer,  the  happy  condition  of  men  in  society,  than  thcv 
ad  ever  been  before.  But  commercial  avidity  raised  an  almost 
■surmountable  obstacle  to  such  improvements  1„  •  • 

,ars:  ,and;  11  was  therefore,  not  until  the  land  wars  of  four  ceT 
ries  had  taught  Europe  the  benefits  that  followed  the  departure 
om  the  practices  of  barbarism  that  tl,e  ,1,  .  •  departure 

kn  ;n  tyon  .  r  inat  tne  determination  was 

Aen  m  1/80,  to  confine  the  rig-hts  of  wnr  rm  „  •  ,  • 

p  lirviWt.  i  oi  war  on  the  ocean  within 

;  marked  th«  hw™  from  tSnf ‘of 

je  early  ages  ,*£  t^  ?f 

jvitzerland,  theforcingof 

bmXatt  d  COaht!ons  lormed  k  her  subsidies  and  intrigues  - 

1  •  enor  ar*d  menaces  of  the  declaration  of  the  duke  of 

t:  wars'excfredTn  La  *V  C°mbined  P°w?rs  into  France;  from 
bm  tf»p  *•  ,  ,  V^dee,  and  their  assassin  character- 

’-•ndham  aZTthe  ^ larations  °f  her  ministers,  such  as  Pitt, 

Cund  'Burk  ,L  ft.  f3ther  of  her  Political  morality 
,»  .  a  ,..fr  ^n  ’n th<i  war  u'as  a  war  helium  ad  internicic- 

2  ‘  tn  unsparing,  desolating,  exterminating. 

1  l\r  *«.  /Se  et.ters’  *  *iave  endeavored  to  obtain  truth  and  to 

1  ede  and  h  S0,UrCe  deri  ved  *  or  whomsoever  .  con? 

'Europe?  hLaIteafc  iat  ^  °f  a11  nations 

ITS,  Which  were  found  °PP°scd  fbe  improvements,  in  maritime 

-  but  a  sccondarc  rcnt  ^C,aI  NaturaI1y  hold- 

t  rank  among  nations  ’  l  , U&  maintained  a  place  in  the 

her  ncio-fibor-  and  l  -a  coursp  conduct  destructive 
g  s,  and  at  variance  with  the  rights  of  all  in*- 


98  .  -  I 

dependent  states.  A  commercial  monopoly  has  been  neces¬ 
sary  to  her  supremacy,  and  to  attain  this  object  she  has 
constantly  kept  the  nations  of  the  continent  of  Europe  at  war, 
and  has  made  the  existence  of  war  the  pretext  for  annihi¬ 
lating  the  trade  of  neutrals.  I  have  enumerated  many  facts,  to 
prove  that,  Britain  regards  no  other  restraints  than  those  of 
physical  force,  and  that  because  her  marine  has  been  generady 
predominant,  she  asserts  a  right  of  giving  law  to  all  commer¬ 
cial  states :  in  further  evidence,  that  such  are  her  dispositions, 
I  quote  the  following  sentiments,  from  the  work  of  Mr.  Charles 
Tenkinson,  (the  late  earl  of  Liverpool)  intended  as  a  defence  oi 
the  rule  of  ’56,  and  other  violations  of  neutral  rights : 

u  stateR  enjoy  all  the  rights  men  did  before  they  entered  into 
society :  an  Individual  in  a  state  of  nature  has  a  right  to  protect 
his  person  and  property,  and  if  A.  enters  into  a  contest  with  B. 

■t  third  person  C.  has  no  right  to  protect  B.,  since  he  would 
thereby  deprive  A.  of  the  right  to  destroy  B.  for  his  own  safe¬ 
ty.” 

'  Such  was  the  avowal  of  a  man,  who  for  fifty  years  had  great¬ 
er  influence  in  directing  the  maritime  policy  of  Britain,  thar 
all  of  its  ministers.  It  was  made  at  a  time,  when  Englaiw 
was  unopposed  on  the  ocean,  and  explains  in  an  emphatic  man¬ 
ner,  the  principles  by  which  she  has  always  been  goveined 
This  acknowlegement  is  such  as  no  man  can  misconstrue  ;  r 
avows  that  physical  force  is  superior  to  moral  obligations  ;  am 
it  declares  the" right  of  thatnation,  which  may  be  able,  not  onlj 
to  exterminate  its  enemies  by  the  sword,  but  to  cut  them  oi 
from  all  intercourse  with  the  rest  of  mankind.  Nor  was  tin 
iniquitous  and  barbarous  doctrine  merely  avowed,  it  has  beei 
constantly  acted  upon :  upon  it  were  founded  the  decrees  fo 
starving  France,  and  all  the  subsequent  measures  down  to  th 
orders  in  council,  and  it  is  this  doctrine  which  is  urged  in  the  pair 
phlet  called  War  in  Disguise ,  and  other  productions  of  the  pre 

sent  British  ministry.  .  . 

To  what  disastrous  consequences,  this  doctrine,  if  adopte 
by  other  states*  would  lead,  every  reflecting  man  must  be  abl 
to  determine:  if  nations  are  as  independent  of  control  as  mt 
in  savage  life,  and  have  a  right  to  regulate  their  will  by  the 
force,  with  what  justice  can  Britain  complain  of  the  progress* 
France  ?  If  it  be  right  in  England  to  issue  an  universal  lai 
shutting  up  the  ports  and  harbors,  and  forbidding  trade  betwe* 
any  one  nation  and  another  ;  if  it  be  right  in  Britain  to  procku 
an  intention  to  starve  any  nation,  and  to  subject  another  natu 
-who  may  not  be  concerned  in  their  dispute  to  outrage  and  pin 
der,  for  doing  an  act  innocent  in  the  eyes  of  morals  and  t 
law’  of  civilized  states  ;  if  Britain  asserts  as  a  right  and  ma 
tains  it  by  force,  the  blockading  of  whole  continents  by  a  m< 
arrogation  of  authority  ;  in  what  does  this  right  consist,  hovvr 
founded,  whence  derived,  what  are  its  limits,  by  what  me; 


99 


i3  it  maintained?  If  it  be  law  to-day,  it  must  be  also  law 
0-mon-ow  5  if  it  be  right  in  one  nation,  it  must  be  also  ri^ 
a!,0;her  nation  in  similar  circumstances;  and  it  befnir 
founded  on  the  power  to  dare  and  the  means  to  effect  it' 
It  must  remain  so  long  as  that  pawer  and  will  a.re  united  ■  but 

gnt  as.erted  by  Britain,  whenever  any  power  obtains  a  forc- 
superior,  a  force  adequate  to  destroy  this  right,  then  by  the 
“c  ru  tllat  Britain  now  urges,  it  will  be  her  duty  to  s”b' 
aj.t  to  the  same  fatal  rigors.  Apply  the  principle'  has n!‘ 
ranee  as  just  a  right  to  employ  its  power,  in  subjecting  ti  e 
hole  continent  to  its  yoke,  as  Britain  has  ’to  exercise  an  « 
f  f  dominion  on  the  ocean.  The  establishment,  therefore 

nerUCstamof  mT0113  ^rana>b  wo«ld  replace  the  world  in  its  for¬ 
ma  state  of  misery  and  barbarism;  and  perhaps  the  reitrsf 

fcdd  be'tl01!  •.  al  British  generations  that  are  to  come 

,ew  cod e  of6 laws' fo  '  r'"  ®yste!"’  b-v  the  establishment  of  a 
lew  code  ot  laws  lor  civilized  nations. 

But,  fortunately,  it  is  the  interest  of  no  other  power  bm 
'  itain  to  adopt  such  principles ;  every  nation  in  Europe  has 

'•aims  that  Lve"ltr°dUCM,n  ™arkime  wars>  the  same  res- 
es.  Henrv  IV  ofTr  T  °f,their  fittest  atroci- 

ussia,  and  Louis  XVI.  did  honor  to  themselves  a^d  thefr  emm- 

it  tire  peonlTof’ fab0l‘Sh  Pnvateering>  and  in  fine  to  per- 
ude  undent  r r  natlons  at  war,  to  pursue  unmolested,  the 

,  and  intercourse  that  existed  durino;  the  neare  nnd  ^ 
ie  hostilities  to  n  *  ,  ?  uie  peace,  and  to  con- 

nostinties  to  the  fleets  and  armed  ships.  Britain  Aon- 

listed  every  overture  of  this  kind  ;  and  when  in  her  ‘read 
t  pTrntit  the'r  *  reC°Saize  the  rights  °f  neutrals,'  die  did 

en  sL  mS  not  ,  ?V'ar,d  anxiet*  t0  a  moment, 

L  also  to  vioW.  U  herseIf>  *>M  induce  other 

War  of  179^  -t  s  PlmciP^es:  and  the  circumstances  of 

Ing  her  wilt’s  SeA  but  Tu  favoraUean  occasion  lor  ful- 

trals,  and  prevailed  on  Russia  whicTimd'T  nghts  of 

™  in  1780,  to  follow  her  vimrff  S  f°  7 

d  hnvp  clno  1  1C1  examPle*  Subsequent  events  in- 

rert  he  h  "t  ;t  ll,Cnt,ereCl  the  "  al  >  "uh  no  ob  eel 
ons-  ^  the.  desV'Uctlon  of  modern  laws  of 

’most  nn  SafViln  t^e  suyugati°n  of  France,  the  removal  of ' 

tv  of  SeutraE  th?-ovmrtT'al  ^  aPP''ehended  from  they 

7  neutrals  the  overthrow  ot  her  monopoly.  With,  those 


100  '  j 

views  it  was  that  she  so  eagerly  promoted  the  coalitions  of  Pavia 
and  Pilnitz:*  hence  it  was,  that  when  she  sent  the  royalist  ofh- 
cers  of  the  French  marine  on  an  expedition  to  Quiberoon,  she 
not  only  abandoned  them  on  the  French  coast,  but  directed  her 
ships  to  fire  upon  them ;  and  when  she  burnt  the  naval  arsenals, 
of  Toulon,  in  contempt  of  the  most  solemn  engagements,  she 
pronounced  both  acts  of  perfidy  and  baseness,  naval  triumphs.} 
Hence  it  was,  that  Nelson  declared  it  was  the  pleasure  ol  Eng¬ 
land  that  Spain  should  no  longer  have  any  trade  ;  and  to  this 
policy  alone  are  we  to  attribute  the  destruction  oi  Copenhagen 
and  the  robbery  of  the  Danish  fleet....the  outrages  towards 
other  European  neutrals,  and  all  the  commercial  misfortunes 
that  have  befallen  our  own  country  for  the  last  sixteen  years. 

3.  If,  therefore,  the  improvement  of  nations  has  been  intei - 
rupted if  principles,  so  favorable  to  neutral  and  weak  states, 
which  were  recognized  in  1780,  have  ceased  to  operate,  it  is 
owing  to  the  unprincipled  means  that  Britain  has  so  steacu  5 
employed  for  their  destruction,  and  not  their  abandonment  b) 
the  other  nations  of  Europe.  On  the  contrary,  the  war  is  nov, 
waged  for  an  object  palpable  in  itself,  and  in  which  all  state: j 
have  an  interest.  It  is  not  to  retain  Malta,  that  hostilities  ar< 
continued,  since  France  lately  offered  to  surrender  it;  it  is  no! 
to  check  the  military  career  of  Bonaparte  on  the  continent 
since  every  campaign  adds  to  his  power:  the  real  cause  is..., 
Britain  anticipates,  among  the  earliest  effects  of  peace,  fror 
the  genius  and  interests  of  the  French  government,  not  only 
successful  competition  in  trade  and  manufactures,  but  a  propc 
sal,  to  the  civilized  nations  of  the  world,  and  an  agreemer 
among  all  civilized  nations  to  form  such  a  maritime  code  s 
would  put  a  period  to  her  usurpation  and  tyranny  on  the  seas. 

In  the  issue  of  the  contest,  therefore,  all  states,  who  have  a 
interest  in  the  freedom  of  navigation,  are  concerned.  Tlj 
whole  maritime  history  of  Britain  shews  what  would  be  tr 
result  to  weak  states,  if  she  were  to  succeed  ;  but  the  polict  ar 
interests  of  France  would  make  her  triumph  propitious  to  even 
neutral.  In  anticipating,  therefore,  the  ultimate  success  « 
France,  I  am  warranted  in  asserting  that  it  will  replace  a  1  n 


*  In  a  speech,  delivered  bv  Mr.  Pitt,  in  parliament,  in  the  winter  °f 
he  said....“  It  has  been  said,'  that  it  is  a  war  of  extermination  we  are  abou  • 
undertake ;  ves,  such  is  the  war.  Again,  it  is  said,  it  depen  s  on  our 
■whether  we  Uve  in  peace  with  France....prudence  commands  us  to  live  witl) 

French  as  enemies.”  ,  ,  j 

f  “  Shall  I  speak  of  the  Quiberoon  expedition,  which  no  man,  not  clean 

honor,  can  think  of  without  shame  and  horror  ?  An  expedition,  in  which  M 
lish  blood  was  not  shed,  but  in  which  British  honor  bled  at  every  pore. 

Mr.  Sheridan's  speech  in  parliament. ...October  o0» 

«  Every  thing  that  has  passed  at  Toulon,  is  scandalous  and  disgraceful  to  > 
arms  and  the  English  name.  I  would  wish  the  world  not  to  believe 
took  that  city  and  its  marine  under  our  protection,  for  the  disgracelu  pu  p 

pf  seizing  the  first  opportunity  to  destroy  them.” 

Mr.  Fox's  t beech.. ..yan.  ci.  I 


101 

tions  in  that  progressive  state  of  improvement,  from  which  thev 
have  been  diverted  by  the  interested  views  and  machinations  of 
Britain.  Her  expulsion  from  Spain,  her  affected  but  hollow 
concessions  to  our  government,  and  the  very  pitiful  manner  in 
which  these  concessions  are  made,  speak  anmnWhn  “1! 
respecting  the  issue  of  England’s  hostilities:  and  happen^rnen 
1  , ma^’  onJr  ^  earliest  consequences  of  peace  will  be  the 
adoption  of  a  system,  founded  upon  the  universal  nrincinles  nf 
justice  and  the  rights  of  all  nations,  under  S  neutrals  n^v 
und  protection  in  all  future  wars.  *  £ ' 

5,i  In  circumstances,  therefore,  in  which  our  Kovernmen< 
is  placed,  its  conduct  will  become  not  only  imponam  to^ur 

of  the’  n "  ?  f  °ther.state?-.  We  have  had  experience  enough 
i  the  unsettled  state  of  maritime  rirdif*?  •  tvp  v,  .  ^ 

rests  to  secure ;  we  have  a  character  to  establish, thoiXomewhai 
tarnished  by  our  conduct  from  1 793  to  1800;  we  are  destined  to 

become  the  first  commercial  nation;  it  becomes  us  then  *  if 
do  not  take  the  lead  in  establishing  a  code  for  the  future  Guidance 
•  p  eS’  at  east  to  contribute  to  its  establishment.  The  exne’ 

Lm \:zi  Hr1  loss’  p;t  thr we  p- 

K  capable  of.anCemCnt  *  perfect,  *  as’  Zy 

advancecMn  tm^ovelml'theirr^ecrion'in  ’  land" 

5S»etTerit  °f  barWi  J’  Proves  that  thTn^they 
warfare  Sir  W  '  '  '"‘'v  ah°hsh  the  abuses  of  maritime 

of  Engbind  scoff  at  th^’i  T  ZZ  °f  thc 

relations  of  states  •  ancl  thev  t  fu.rthekr  imP>-°vement,  in  the 
their  sneers  i!!?  ’ ,  r  ,7  te,rm. 11  the  new  philosophy;  but 

tread  of  its  realization”3  C  ^lea  absurd,  only  shew  their 

tuting  moral insield  of  i  .  Z'Z  ,tself  IS.  secured  by  substi¬ 
le  induced  tr>  «  ,P  '.slca  force;  and  if  savage  men  could 
pomposed  of  civir^”)  ^  tltmstlvcs  to  control,  surely  nations, 

rosed  to  receive  the  he  T’  T*  Z  Pr£Pared>  and  "><« 

lations  stand  as  l  fi  °,f  association  for  mutual  defence; 

iety  is  daere  a,^  °‘  ,nutual  support  a*  men  in  so- 

hey  will  unite  in  '"S'  pteposterous,  then,  in  supposing  that 
7  n‘tCln  an  association,  for  their  general  benefit? 

f'Mapeake!  M' '  Rr*,n"  ha'1  ofrt'r?d  atonement  for  the  murders  or  y,., 


Cottages  were  the  foundations  of  cities  and  states  ;  so  ueaties 
have  been  the  basis  of  association  among  nations;  but  when 
treaties  were  first  introduced,  the  pirates  of  Europe  treated 
them  as  the  advocates  of  England  now  treat  the  idea  of  a  con¬ 
federation  of  nations,  they  were  the  nezv  philosophy  of  that  age; 
treaties,  though  violated  in  these  days,  in  a  manner  beyond  ex¬ 
ample,  have  not  been  exploded  ;  and  although  Britain  has  per¬ 
formed  her  part  in  bringing  them  into  disrepute,  they  still  re¬ 
main  as  links  in  the  chain  that  unites  civilized  powers. 

But  a  confederation  of  nations  for  protecting  weak  states,  is 
not  merely  a  theoretical  idea,  or  a  matter  of  casual  sug¬ 
gestion  ;  there  have  been  confederations,  and  they  have  pro¬ 
moted  all  the  objects,  that  laws  accomplish  in  society.  There 
had  been  repeated  confederations  of  states,  in  Europe,  for  the 
regulation  of  continental  concerns,  prior  to  the  famous  league 
of  1780;  but  as  the  latter  was  formed  for  maritime  purposes, 
it  is  the  most  remarkable  :  England  ought  not  to  have  doubted 
the  efficacy  of  confederations,  after  having  been  compelled  by 
that  of  1780  to  abandon,  with  disgrace,  her  piratical  deprecia¬ 
tions  upon  neutral  commerce  ;  she  cannot  dispute  their  efficacy, 
.since  she  sent  two  expeditions,  in  the  course  of  the  present 
war,  to  frustrate  the  objects  of  northern  confederacies,  lhe 
politicians  who  deal  in  mystery,  and  who  wish  to  afford  a  lati¬ 
tude  for  any  course  of  conduct,  call  partial  confederacies  ba¬ 
lances;  and  thus  the  balance  of  pcxver  is  one  of  the  cabalistic 
phrases  of  this  class  ;  their  own  measures  afford  the  best  expo¬ 
sition  of  their  using  a  figure  of  speech  wholly  unappropriate  ; 
when  the  whole  of  Europe  was  raised  in  arms  against  France, 
it  was  to  support  the  balance  of  power ;  now  the  dominion  ot 
the  sea  is  the  balance  of  power;  but  an  association  or  confede¬ 
ration  for  giving  freedom  on  the  seas,  is  called  despotism  ;  ut 
it  is  the  despotism  of  just  law  against  crimes  and  criminals; 
and  it  is  to  be  desired,  as  it  appears  to  be  realised  in  our  times, 
that  all  civilized  states  would  establish  a  code  of  laws  for  their 

general  and  common  observance.*  J 

It  is  evident,  therefore,  that  states,  like  men,  stand  in  need 
of  mutual  protection  ;  that  they  are  more  likely  to  form  a  soci- 
etv  for  supporting  the  weak  and  punishing  aggression,  than  men 
were  when  they  passed  from  a  savage  to  a  civilized  state ;  that 
states  have  advanced  in  this  important  improvement,  and  that 
they  have  reaped  the  advantages  anticipated.  As  in  society. 


*  A  new  paradox,  but  of  the  same  equivocal  generation,  lias  been  started 
while  this  sheet  is  at  press;  which  is  in  the  following  curious  paragraph ^ 
“  The  balance  of  power,  which  for  three  centuries  prevented  the  destruction  o 
any  one  independent  state  by  violent  means,  and  exhibited  before  the  dismem¬ 
berment  of  Poland,  nineteen  distinct  powers  ol  the  most  unequal  strength  i> 
to  be  ascribed,  not  to  the  moderation  or  to  the  jealousy  of  the  tour  great  rivals, 
Put  to  what  may  be  termed,  an  equilibrium  of  weakness  in  their  military  const m 


' fiOJTS . 


10:3 

nations  have  the  power  to  recall  then  T  shewn’  that 

»-# 

r  ::sa  t  -  F  t^ 

us.#  re'enue  01  ln«  nation  that  has  injured 

ditW  ^  in^^IT'T  n£'°C!?im’ the  misei‘abIe  con- 

society  ;  let  them  pursuing*  t’^  i  -  co:nParajlve  happiness  of 

tions  also  the  blessFngs  of  associa^io^^n^if'tl  l°  ”a' 

move  the  inclination  let  them  H™  °  ’  ,  the>'  cannot  re- 

to  profit  by  the  weakness  of  others.  ‘  ^  Str°D8'  °f  aU  Powe,!> 

)  1  ‘ 

April  28,  1809. 

t'.at  “5-  E“  offers  were  accepted  = 

to  the  impolitic  cnr.ciac*  cf  fre -{"  bo  flt,riI™t<‘d  in  a  great 


V 


I 


APPENDIX. 


A. 

“*  explain  so  forcibly  the 

EE»  IV.  am  indUCed  t0  add>  “  *  -te  .oPt,“h?h  better,  a'brkf 

afte;v^rhd  ?"ktv!;Shre“  the  earl!est  <*?«, 

sian  government  in  an  attempt  to  maintaTn  tL  marl^'Tratr 0n  °f  ^  Rus" 

proposal  was,  after  some  time,  assented  to  by  Russia  for  the  British  S'  The 
as  tyrannical  a  control  over  her  commerce  as  over  that  nf  q  British  exercised 
Accordingly,  on  the  16th  August  1800  Rn\J,  ^Sweden  or  Denmark. 

tablishing  the  following  principles  of  the  armed  neuSy  Inra™?101'*  rC  eS’ 

on  the  coasts  of  belli gerent  nations .  3  d  fr°m  °ne  port  t0  another» 

-nt-band,  belonging  to  subjects  of  belligerents, 

“  3-  The  denomination,  a  blockaded  port  shall  hp  i  *  i 

when  the  disposition  and  power  of  the  blockading  ships  shdl  bel.Ch^^  °niy 
der  it  apparently  hazardous  to  attempt  to  enter  °  "  h  as  to  ren' 

re^ly  «sed“  **"  UnderSt°°d  to  “  «“*  only  as  are  di. 

°f  a  shiP’s  W°»  only,  and 

A  convention,  for  maintaining  those  principles  wn<?  pnf-or»u  •  .  ,  _ 

Sweden,  and  Denmark,  at  the  close  of  1800  rCmd  was  followed  ^ hv  7  RUSS,a J 
pondence,  from  which  the  succeeding  extracts  are  quoted  :  3  C  corre3‘ 


No. 


t 

X- 


Lmcrfrom  Mr.  Drummond,  to  the  Danish  minuter  count  3emstorf....Dec.  27, 1  SO 0. 

The  court  of  Eondon  is  informed  tlnf  npnmn»v  •  _ 
hosti'e  to  the  interests  of  the  British  empire  "  Th  Carryi[^  on  negotiations 
courts  of  Europe  of  a  confederacy  ^ between  ?PCak  °penly  in  a11  the 

oppose  by  force  the  exercise  of  those  principles  CfCn ^Vm°T  0thet*  p0.wers’ to 
nav*l  power  of  Great  Britain  rests.”  P  1  mantime  law,  on  which  the 


No.  II. 


Axsweb ....December  31,  1800. 

»MrIhin"iere!5!,ati“  h”  other  oWect  than  the  renewal  of  the  engagements 
•neap, non,,  «*  founleTHpon  the  strict  oflh'c  ^ reuS 


APPENDIX. 


No.  III. 

Swedish  answer  to  a  remonstrance  presented  by  the  British  minister' . 

ft  if  the  British  minister  will  refer  to  the  conduct  of  England  to  Sweden  and 
other  neutrals  during  the  war,  he  will  find  the  real  cause  of  the  present  northern 
alliance.  If  his  majesty  was  not  fully  convinced  of  the  innocence  of  his  inten¬ 
tions,  he  might  matte  an  enumeration  of  the  injuries  which  justify  his  mea¬ 
sures  ;  of  the  unpunished  offences  of  the  commanders  of  British  ships,  even  in 
Swedish  harbors  ;  of  the  inquisitorial  examinations,  to  which  Swedish  captains 
and  seamen  have  been  subjected  ;  of  the  detention  of  the  convoy  in  ±<  98  ;  of  the 
deceitful  chicanery,  characterizing  the  proceedings  of  the  British  admiralty 
courts  ;  of  the  absolute  denial  of  justice  in  many  instances  ;  of  the  insult  offered 
to  the  Swedish  flag  at  Barcelona  ;  and  of  the  justification  instead  of  punishment, 
of  offending  officers.” 

No.  IV. 


Lord  Carysfort  to  the  court  of  Berlin. ...January  27,  1801. 

ct  rphe  undersigned  communicates  a  copy  of  a  note  presented  by  his  Britanmo 
majesty  to  the  courts  of  Sweden  and  Denmark,  on  the  subject  of  a  confedeiacv, 
which  his  majesty  is  persuaded  Prussia  could  never  have  sanctioned.  The 
measures  of  these  powers  openly  disclose  an  intention  to  renew  pretensions, 
which  Great  Britain  has  at  all  times  considered  hostile  to  her  rights  and  in- 
te  rests. 

“  His  majesty,  on  a  former  occasion,  resisted  the  principles  now  again  at¬ 
tempted  to  be  introduced,  and  announced  to  Prussia  that  Great  Britain  never 
would  submit  to  pretensions,  which  strike  at  the  foundation  of  her  greatness 
and  maritime  power.” 

No.  V. 

Answer  of  count  Haugwitz.  ...February  12,  1801. 

u  qqie  arbitrary-  conduct  of  England  is  naturally  explained  by  the  lofty  preten¬ 
sions  she  has  so  long  advanced,  at  the  expence  of  all  the  maritime  and  commer¬ 
cial  powers.  The  British  government  has,  in  the  present,  more  than  in  any  for¬ 
mer,  war,  assumed  to  itself  the  sovereignty  of  the  sea,  and  has  arbitrarily  form¬ 
ed  a  maritime  code,  which  it  is  extremely  difficult  to  reconcile  with  the  true 
principles  of  the  laws  of  nations;  it  exercises  over  friendly  and  neutral  powers, 
an  usurped  jurisdiction,  which  it  maintains  to  be  just,  and  endeavors  to  repre¬ 
sent  as  an  indispensible  law,  sanctioned  by  all  the  tribunals  of  Europe,” 


No.  VI. 


British  king's  speech... .February  2,  1801. 

it  a  convention  has  been  concluded  by  Russia  with  Sweden  and  Denmark, 
for  establishing  by  force  a  new  code  of  maritime  law,  inconsistent  with  the  rights 
and  hostile  to  the  interests  of  this  country.  In  this  situation  I  could  not  hesi¬ 
tate  as  to  the  conduct,  which  it  became  me  to  pursue  :  I  have  taken  the  earliest 
measures  to  repel  the  aggressions  of  this  hostile  confederacy,  and  to  support 
those  principles  which  are  essential  to  the  maintenance  of  our  naval  strength.” 

Accordingly,  in  the  succeeding  month,  a  British  fleet  forced  the  passage  of 
ihe  sound,  bombarded  Copenhagen,  and  after  a  desperate  engagementwith  the 

Danes,  contributed  to  suppress  the  spirit  of  the  northern  powers.  .  J 

On  the  23d  of  the  same  month,  March,  the  emperor  Paul  was  assassinated  by 
the  British  party  at  St.  Petersbiu-g:  thus  by  open  violence,  without  any  decla¬ 
ration  of  war,  and  by  assassination,  the  second  northern  confederacy  was  pre- 
\  ented  from  enforcing  its  principles,  but  the  principles  themselves  were  no 


APPENDIX. 


”r"  a  r hMi°" of  a»  -p- 

fdes  originally  asserted  P  ’  ,hey  "°Uld  fornJ1%  »ba"d<>n  the  princi- 


B. 

.CONDUCT  TO  AMERICANS  WHEN  THEY  WERE  COLONISTS  OF 
/  xSKI  i  AIN. 

.  Besides  imposing  duties  on  American  exports  and  imports  the  1  •  • 

jSrel'event  "°rth  °‘  S 

articles  as  Britain  could  not  furnish  So  that  a  m  -0t  bUy*  °r  t0  Purchase  such 

on  the  ^  S32 

CONDUCT  TO  IRELAND. 

to 

father-in-law,  James  II.  one  of  the  articles  of  agreement  nronosed  tn  1  L 
that  he  should  destroy  the  woollen  trade  of  Ireland,  in  order  that  that  brancTof 

jn  En^land:  William  assented,  and  thus  were  tl^ 
Irish,  whilst  tributaries  of  England,  forced  to  abandon  the  woollen  trade  and  en 
^age  in  the  linen  trade,  because  the  former  interfered  with  the  interest  ’  of  Fn”: 
and,  and  because  the  manufacture  of  linen  had  not  succeeded  there.  "  *  c 

c. 

4n£r  rwereuihe  Immane  instructions,  given  by  Russia  to  admiral 
‘  co,lforniably  t0  its  treaty  with  England,  of  March,  1793 : 

We  have  ordered  a  fleet,  of  25  sail  of  the  line  and  frigates,  to  be  equipped 
*«"»  months  and  put  under  your  command.  A  * 

Principal  duty  of  our  naval  armament  consists  in  what  follows-  We 
re  bound  according  to  our  stipulations  with  his  majesty  the  kin-  of  Great  Bri 
am  to  endeavor  to  prevent  these  French,  who  persist  in  tlieh  i^belhon  fnim 
~  eiwng  a:i)  supplies  ot  which  they  may  be  in  need.  The  hostile  measures 
m ployed  agamat  them,  are  not  strictly  conformable  to  the  natural  laws  of  war* 
fe.n  1  un  01  tuuately  takes  place  between  nations  under  lawful  government  •  but 
1  dutie  mHaSUreSiare  takfn  agaInst  th0se  villains,  who^o^£i£d 

t  iafiTnf  tt0r  tfG°rd’  ;lle  laws’  a,,d  the  g»— nt,  who  have  ™e„ 
lose  vilkina  hC  ,“e“'  T"  sovereig'>-  -the  means  of  punishing 

>d  insure  success  i,"s<l" Itoary  an  ^  m  to  accelerate 

ir  ,W  5“"™,*  representations  to  the  courts  of  Sweden  and  Denmark,  but 

clircdtodwm-t  ?  hcc"  s»“»f«tonly  answered:  wherefore  we  have 
•  fZ.  S  T  can,,°‘  se,c  Wltb  '"Jiflerencc  provisions  or  stoves  sent 
c<b  "h,l-h  scrve  t0  nourish  the  rebels.  By  this  you  .will  clearly  see  on- 


APPENDIX. 


will  and  intentions  :  and  wc  order  you  to  seize  all  those  French  \ esseD you  rnaj 
meet  with,  and  to  send  back  to  their  ow  ports  all  neutral  vessels  bound  t» 
France.  Under  such  circumstances,  convoys  cannot  protect  particular  vessels 

from  search.”  _  ,  .  .  ,  , 

The  British  orders  went  even  beyond  the  above..  ..English  cruizers,  instead. 

of  being  directed  to  send  back  to  their  own  country  neutral  vessels  bound  with 
provisions  to  France,  were  ordered  to  seize  and  take  them  into  British  ports. 


D. 

It  is  a  painful,  but  it  may  be  a  useful,  task,  to  quote  the  assertions  of  a  com- 
mercial  enemy,  to  prove  that  our  merchants,  particularly  those  of  New  England, 
violated  the  laws  of  their  country  in  favor  of  its  oppressors.  ' 

The  elder  Mr.  Rose  laid  before  parliament,  a  labored  statement,  from  \\  men 
it  appeared,  that  the  exports  of  British  manufactures  were  not  diminished  by  the 
American  embargo,  and  that  a  quantity  equal  to  our  consumption  was  smuggled 
into  .he  United  States  by  British  agents,  aided  bv  some  of  our  own  citizens. 

The  following  extracts  from  lord  Sheffield’s  pamphlet,  published  m  March, 
1809,  give  a  lamentable  description  of  the  patriotism  undmoralitv  of  a  large  por¬ 
tion  of  the  federal  partv. 

«  There  is  every  reason  to  expect,  that,  in  the  event  of  hostilities  with  Ame¬ 
rica  at  least  one  half  of  the  exports  from  this  country,  usually  consumed  in  those 
States,  would  be  introduced  into  them,  through  the  medium  of  an  illicit  trade, 
even  supposing’  all  the  states  to  be  hostile,  which  assuredly  would  not  be  the 
case  with  New  England.  Page  17. 

“  Within  the  last  fortnight,  16  vessels  have  arrived  from  the  American  states, 
in  breach  of  the  embargo  laws,  bringing  upwards  of  6000  bags  of  cotton. 

Page  23. 

“  Scarcely  a  day  passes  that  one  or  more  American  vessels  do  not  enter,  with 
various  articles  of  their  produce,  in  violation  of  the  embargo  laws.  Page  27. 

“  The  New  England  states  are  so  hostile  to  the  embargo,  that,  it  is  scarcely  | 
regarded;  and  their  repugnance  to  it  has  lately  been  more  fully  evinced  by  open 
acts  of  violation  of  the  law.  amounting  to  little  short  of  rebellion.  The  people  ' 
have  forcibly  taken  possession  of  the  forts  at  Portland  and  Cape  Anne,  and  for¬ 
bidden  the  armed  vessels,  sent  to  enforce  the  embargo,  to  interrupt  any  ships 
sailing  to  the  West  Indies  or  elsewhere  with  their  produce.  The  courts  of  jus¬ 
tice,  in  those  parts,  have  discharged  all  persons  bound  in  recognizances  for  the 
breach  of  the  embargo  laws  ;  and  since  it  was  found  that  congress  would  not 
take  off  the  embargo,  numbers  of  vessels  have  gone  to  the  West  Indies  laden 
•with  provisions.  It  is  known,  from  the  best  authority,  that  44,000  barrels  of 
flour  from  Halifax,  and  36,000  from  St.  Andrew,  New  Brunswick,  were  sent  t* 
the  West  Indies  during  the  latter  part  of  the  last  year.”  Pages  33-4 

In  page  44,  lord  Sheffield  accounts  for  this  depravity,  by  saying,  that  “  Ame¬ 
ricans  are  not  now,  what  they  were  at  the -close  of  the  American  war  ;  they 
were  then  warlike,  they  arc  now  merely  commercial,  and  their  dependence  is 
solely  on  commerce.” 


The  British  treaty  was  not  ratified,  by  general  Washington,  witheut  the  1 
greatest  reluctance  :  he  hesitated  to  the  very  last  moment,  and  was  driven  into  ; 
compliance  by  a  cabal,  which  surrounded  him,  and  kept  the  real  friends  of  their 
country  from  his  presence.  After  signing  it,  lie  excused  himself  by  saying  that 
he  did  not  wish  to  separate  from  the  senate. 

The  appropriations  for  the  treaty  were  carried  through  the  house  of  repre-  { 
sentatives,  not  by  arguments  on  its  merits,  but  by  such  a  panic  as  induced  the 
10th  congress  to  abandon  the  embargo :  a  separation  of  the  union  was  threaten 
cd  by  the  New  England  states. 

At  the  time  (the  years  1794-5)  that  the  rights  of  the  union,  and  the  honor  a 
the  country  with  respect  to  France,  were  sacrificed  by  the  ratification  of  tin 
British  treaty,  the  exports  from  the  United  States  to  France  amounted 


APPENDIX 

12,00^  ooj  dollars,  whilst  those  to  Britain  only  amounted  to  9,218.540  dollar 
he  whole  of  the  former  was  for  French  consumption,  but  much  of  the  latte- 
was  for  re-exportation.  The  return  cargoes  from  France  were  chiefly  W 
mone),  but  those  fiom  Britain  were  her  manufactured  goods. 

F. 

The  loss,  which  our  country  experienced  in  3798,  bv  arp^tlnnrf  v* 

course  with  France,  and  the  losses  tliat  are  now  (1809)  every  dav  felt  }>W] 1  ^ 

interruption  of  trade  with  that  country  and  its  depend-rems- ,  ,,-1  '  }.tlU: 
from  the  following  among  other  facts.  '  ^pena.ncies,  may  he  conceived 

The  exports,  in  1796,  for  France  and  colonics,  from  the  nnrt  of  pi  ;p  i  ’  i  • 
alone,  amounted  to  4,185,431  dollars.  "  1  J  1  °*  1  hiladelphui 

In  1/  98,  tobacco  sold  in  Britain  at  from  4  to  5  dollars  n— f  no  • 

'  ^nce  it  sokl  at  from  40  to  50  dollars  :  rice  sold  in  Britain  at  6  or  7  shPhntr  * 

vvhilst  m  France  it  sold  at  40  livres.  The  profit  nr  diffm-or,™  •  •  ’ 

u-ticles,  was  made  by  British  merchants  licensed  to  sell  tiiem^V  Finn’ — ^ 

hat  we  were  duped  by  a  “  British  party”  at  horn-  in  order  t  o  ti ,.5 J . m 

>f  our  exPort  trade  to  France  into  British  coffer*  ’  ‘  ‘  °WtllC  Profits 

In  the  year  ending  October,  1806,  the  commerce  of  the  United  States  w-s  cv 

"  Th,  m“  alo“  “  "'6  did  t0  Gr<-’at  Britain  and  her  colordes  ^  ^  }  “ 
The  total  amount  of  our  exports  m  that  year  was  101,313  386  doll  vs 
Of  this  we  exported  to  Britain  and  dependencies  .  '  eg  9<f|oQ  q«- 

fob  ranee  and  dependencies,  Spain  ')  J  ’ 

_  Holland,  Italy  53,577,494 

“ — t0  Russia,  Sweden,  Denmark,  Aus-  } 
tna,  Prussia,  Hanse-towns  -  .  C 
to  Portugal  ......  t  _ 

-to  all  other  parts  of  the  world  - 

■out  seventy  millions  of  dollars  annuallv°‘  Ur, (7,  ’'°  a.itra<le  t0  the  :™oullt  ,  f 
?06,  to  that  part  of  Europe  from  "S'  Rr  7  „  8  f  f\°Unt  exPortcd  m 

lerefore,  she  will  not  permit  us  to  cro  a!'  *!•  excluded’  and  i0  which, 

r^saT000’ w?  - «« J-  *  thf  :( 

' untries,  J  ^thi^Ti^of die' 'bfsf^ket3?!"’  andIta,>  bc!n.?  “‘holic 

at  tlms  violates  the  rights  of  their  em  '  *?  su.PP°rt  t,le  very  government, 

mmerce.  8  thc“  C0unu7>  « the  best  branch  of  then- 

That  all  this  loss  of  trade  is  efTer-tp/l  K«r  +il/3  r>  ,  . 

'  whilst  the  French  decrees  -u-r-  .  >.  !?  orderS  no  man  can  doubt, 

aintain  a  constant  intercourse  with  Prit^1  ~  iarn)^ss,  and  whilst  oiu-  slops 
•t  for  a  port  in  FrancTor  HoUand  ’  ^  ^  vessel  da™  to  cleir 

;  onishment  at  our  country^ for^IirrcndcF110  ^  ~V°id  exPrcssing‘ tlie  utmost 
luths  of  our  export  trade’  S  "  ^  V’lthout  a  struggle,  £earlv  three. 

*ed  population  of  ^ L *  *tCrC0UMC  ™th  three-fourths  of  the  du¬ 


ll, 887,501 

2,521,995 

5,096,490 


G. 


•  Chaw,  .fcccA  on  the  Fall-land  Uland^tion. . No«micr  13,  lrro. 

'ipted  ^regulate ''it as™  rHd  In"  .‘‘'  “p1'  !iritidi  ships  j  and  when  they  a 


‘ 


'  * 


■ 


' 

’  I 

»r 


\  * 


* 


-  7 


! 


ft 


n  < 


» 


S*  .  .  .J|  ft  '  9 

- 

♦•+  -i 

| 


I  * 

' 


. 


REPORT 


A  DEBATE, 

IN  THE 


SENATE  OF  THE  UNITED  STATES, 


ON 


A  RESOLUTION  FOR  RECOMMENDING  TO  THE  LEGILATURES 
OF  THE  SEVERAL  STATES,  AN  AMENDMENT  TO  THE  THIRD 
PARAGRAPH  OF  THE  FIRST  SECTION  OF  THE  SECOND  AR¬ 
TICLE  OF  THE  CONSTITUTION  OF  THE  UNITED  STATES, 
RELATIVE  TO  THE  MODE  OF  ELECTING  A  PRESIDENT  AND 
VICE  PRESIDENT  OF  THE  SAID  STATES. 


BY  WILLIAM  -DUANE. 


COPY  RIGHT  SECURED  ACCORDING  To  ACT  OF  CONGRESS. 


) 

PRINTED  BY  WILLIAM  DUANE,  No.  106,  MARKET 

STREET. 


1804 


OSBl^FiX^i 


ogam 


REPORT  OF  A  DEBATE. 


Mr.  Clinton  of  New  York,  after  a  few  prefatory  ob¬ 
servations  on  the  necessity  of  designating*  the  persons 
severally,  whom  the  people  should  wish  to  hold  the  of¬ 
fices  of  President  and  Vice  President  of  the  United 
States,  and  stating  that  the  state  which  he  represented, 
as  well  as  others  of  the  union,  had  through  the  medium 
of  their  legislatures,  strongly  recommended  the  adop¬ 
tion  of  the  principle,  laid  on  the  table  the  following  mo¬ 
tion,  which  he  read  ;  and  it  was  made  the  order  of  the 
day  for  the  next  day,  and  printed. 

Resolved,  by  the  Senate  and  House  of  Representa¬ 
tives  of  the  United  States  of  America,  in  Congress  as¬ 
sembled,  Two  thirds  of  both  Houses  concurring,  That 
the  following  amendment  be  proposed  to  the  le¬ 
gislatures  of  the  several  states  as  an  amendment  to  the 
constitution  of  the  United  States,  which,  when  ratified 
by  three  fourths  of  the  said  legislatures,  shall  be  valid 
to  all  intents  and  purposes,  as  part  of  the  said  consti¬ 
tution,  to  wit  : 

That  the  third  paragraph  of  the  first  section  of  the 
second  article  of  the  constitution  of  the  United  States, 
in  the  words  following,  to  wit  :  u  The  electors  shall 
meet  in  their  respective  states  and  vote  by  ballot  for 
two  persons,  of  whom  one  at  least,  shall  not  be  an  inha¬ 
bitant  of  the  same  state  with  themselves :  And  they 
shall  make  a  list  of  all  the  persons  voted  for,  and  of  the 
number  of  votes  for  each,  which  list  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  government 
of  the  United  States,  directed  to  the  President  of  the 
Senate  :  The  President  of  the  Senate  shall,  in  the  pres¬ 
ence  of  the  Senate  and  House  of  Representatives,  open 
all  the  certificates,  and  the  votes  shall  then  be  counted  : 
The  person  having  the  greatest  number  of  votes  shall 
be  the  President,  if  such  number  be  a  majority  of 
the  whole  number  of  electors  appointed,  and  if  there  be 
more  than  one  who  have  such  majority,  and  have  an 


(  4  ) 


equal  number  of  votes,  then  the  House  of  Representa¬ 
tives  shall  immediately  choose  by  ballot  one  of  them 
for  President ;  and  if  no  person  have  a  majority,  then 
from  the  five  highest  on  the  list,  the  said  house  shall  in 
like  manner  choose  a  President :  But  in  choosing  the 
President,  the  votes  shall  be  taken  by  states,  the  rep¬ 
resentation  from  each  state  having  one  vote  ?  A  quorum 
for  this  purpose  shall  consist  of  a  member  or  members 
from  two  thirds  of  the  states,  and  a  majority  of  all  the 
states  shall  be  necessary  to  a  choice :  In  every  case  af¬ 
ter  the  choice  of  the  President,  the  person  having  the 
greatest  number  of  votes  of  the  electors  shall  be  the 
Vice  President  ;  but  if  there  should  remain  two  or 
more  who  have  equal  votes,  the  Senate  shall  choose 
from  them  by  ballot  the  Vice  President,”  be  expunged 
from  the  constitution,  and  that  the  following  paragraph 
be  inserted  in  lieu  thereof ;  to  wit  ? 

The  electors  shall  meet  in  their  respective  states, 
and  vote  by  ballot  for  two  persons,  of  whom  one  at 
least,  shall  not  be  an  inhabitant  of  the  same  state  with 
themselves  ;  they  shall  name  in  distinct  ballots,  the  per¬ 
son  voted  for  as  President,  and  the  person  voted  for  as 
Vice  President ;  and  they  shall  make  distinct  lists  of  all 
persons  voted  for  as  President,  and  of  all  persons  voted  for 
as  Vice  President,  and  of  the  number  of  votes  for  each  ; 
which  lists  they  shall  sign  and  certify,  and  transmit  seal¬ 
ed  to  the  seat  of  government  of  the  United  States,  direct¬ 
ed  to  the  President  of  the  Senate.  The  President  of  the 
senate  shall,  in  the  presence  of  the  senate  and  house  of 
representatives,  open  ail  the  certificates,  and  the  votes 
shali  then  be  counted.  The  person  having  the  greatest 
number  of  votes  for  President,  shall  be  President,  if  such 
number  be  a  majority  of  the  whole  number  of  electors  ap¬ 
pointed,  and  if  there  be  more  than  one  who  have  such 
majority,  and  have  an  equal  number  of  votes,  then  the 
House  ot  Representatives  shall  immediately  choose  by 
ballot,  one  of  them  for  President  ;  and  if  no  person  have 
a  majority,  then  from  the  highest  on  the  list,  the 

said  house  shall,  in  like  manner,  choose  the  President. 
But  in  choosing  the  President,  the  votes  shall  be  taken 
by  states,  the  representation  from  each  state  having  one 
vote  :  a  quorum  for  this  purpose  shall  consist  of  a  mem¬ 
ber  or  members  from  two  thirds  of  the  states,  and  a  ma¬ 
jority  of  all  the  states  shall  be  necessary  for  a  choice.  The 
person  having  the  greatest  number  of  votes  for  Vice- 
President,  shall  be  Vice  President  ;  and  in  case  of  an 


(  5  ) 


equal  number  of  votes  for  two  or  more  persons  for  Vice- 
President,  they  being  the  highest  on  the  list,  the  Senate 
shall  choose  the  Vice  President  from  those  having  such 
an  equal  number ;  a  quorum  for  the  purpose  shall  con¬ 
sist  of  two  thirds  of  the  whole  number  of  senators,  and  a 
majority  of  the  whole  number  shall  be  necessary  to  a 
choice. 

OCTOBER  22. 

The  order  of  the  day  being  called  for  on  Mr.  Clinton’s 
motion  of  the  preceding  day  a  desultory  conversation  took 
place,  during  which  Mr.  Butler  offered  another  amend¬ 
ment,  the  object  of  which  was  to  limit  the  service  of  an  v 
person  chosen  as  president,  to  two  successive  periods  of 
four  years,  this  and  some  other  verbal  amendment  were 
finally  referred  to  a  select  committee,  namely,  Mr.  But¬ 
ler,  Mr.  Bradley,  Mr.  Clinton,  Mr.  Nicholas,  Mr.  S. 
Smith,  to  report  and  consider  thereon. 

MONDAY,  OCTOBER  24. 

Mr.  Butler  chairman  of  the  committee  to  whom  was 
referred  the  propositions  for  amending  the  constitution, 
made  report,  which  being  read. 

Mr.  Dayton  moved  to  strike  out  all  that  relates  to  the 
office  of  vice  president,  which  after  a  short  desultory 
debate  was  lost. 

OCTOBER  25. 

On  motion  ordered  that  the  amendments  to  the  consti¬ 
tution  yesterday  reported  by  the  committee  be  the  order 
of  the  day  for  to-morrow. 

OCTOBER  28. 

The  clerk  of  the  house  of  representatives  informed 
the  senate,  that  they  had  passed  a  resolution  for  an 
amendment  to  the  constitution,  for  designating  the  choice 
of  president  and  vice  president,  to  which  they  desire  the 
concurrence  of  the  senate. 

NOVEMBER  10. 

Mr.  Bradley  stated  in  his  place  that  the  legislature 
of  the  state  of  Vermont  had  passed  a  resolution,  that  it 
is  highly  important  that  an  alteration  should  take  place 
in  the  second  article  of  the  constitution  of  the  United 
States,  which  prescribes  the  mode  of  choosing  a  presi¬ 
dent  and  vice  president  and  that  a  copy  of  the  said  resolu¬ 
tion  should  be  sent  to  their  senators  and  representatives 
in  congress  respectively  and  the  resolution  being  read, 
it  was  moved 

That  the  senate  do  now  proceed  to  the  consideration  of 
the  report  of  the  committee,  made  on  the  24th  of  October 


(  6  ) 


last,  on  an  amendment  to  the  constitution  of  the  United 
States,  respecting  the  election  of  president  and  vice-pre¬ 
sident.  The  question  being  required  it  passed  in  the 
negative — Yeas  9 — Nays  22. 

The  names  being  called  for  to  the  yeas  and  nays  by 
one  fifth  of  the  senators  present  they  stood  as  follows. 

YEAS, 


Messrs.  Anderson, 

Hillhouse, 

Tracy 

Butler, 

Olcort, 

Wells, 

Dayton, 

Plumer, 

White — 9  Yeas 

NAYS. 

Messrs.  Adams, 

Ellery, 

Potter, 

Bailey, 

Franklin, 

Israel  Smith, 

Baldwin, 

Jackson, 

John  Smith, 

Bradley, 

Logan, 

Stone, 

Brackenridge, 

Maclay, 

Taylor, 

Brown, 

Nicholas, 

Washington, 

Cocke, 

Pickering, 

Wright— 22  Nays. 

Cendit, 

[It  may  be  proper  to  explain  the  apparent  contradiction, 
in  those  who  had  been  advocates  for  the  amendment  op¬ 
posing  to  come  to  the  immediate  consideration.  The 
lact  is  that  by  the  resignation  of  Mr.  Clinton  a  few  days 
before  there  was  not  a  certainty  of  two  thirds  of  the  votes 
present,  as  may  be  seen  by  the  above  votes.  The  advo¬ 
cates  of  the  amendment  therefore,  wished  to  gain  time 
so  as  to  obtain  the  accession  of  some  absent  members— 
daily  expected.] 

NOVEMBER  16. 

It  was  moved  and  agreed  that  the  further  consideration 
of  the  report  of  the  committee  to  whom  was  referred 
the  motion  for  amendments  to  the  constitution  of  the 
United  States  respecting  the  election  of  president  and 
vice  president ;  and  also  the  resolution  of  the  house  of 
representatives.,  on  the  same  subject,  be  the  order  of  the 
day  for  Monday  next. 

NOVEMBER  23. 

The  senate  resumed  the  consideration  of  the  report 
of  the  committee  to  whom  was  referred  the  motion  for  an 
amendment  to  the  constitution,  in  the  mode  of  electing 
the  president  and  vice  president  of  the  United  States 
whereupon  the  president  pro  tern.  (Mr.  Brown)  submit¬ 
ted  to  the  consideration  of  the  senate  the  following  ques¬ 
tion  cf  order. 

a  When  an  amendment  to  be  proposed  to  the  constitution 
is  under  consideration ,  shall  the  concurrence  of  two  thirds 
of  the  members  present ,  be  requisite  to  decide  any  question 
for  amendment .?,  or  extending  to  the  merits ,  being  short  cf 
the  final  question 


C  7  ) 

A  debate  took  place  on  this  proposition,  tedious  intri¬ 
cate  and  aesultory  which  it  was  very  difficult  to  follow  and 
often  to  comprehend.  '  ana 

Mr.  Adams  was  of  opinion  that  on  all  questions  in 
VolrmS  ;!ie  amendment  two  thirds  of  the  votes  were 

Subject.  n°C  011  mj  °fthe  forms  of  Proceedings  on  the 
Mr.  Dayton  thought  two  thirds  necessary  on  all 
defend!15 

here  as  wel1  in  a  ***  **4*  as  trrs 

Mr.  Franklin  differed  altogether  from  the  last  snenK 
er,  e  considered  all  the  preliminary  proceeding 
previous  to  the  ultimate  vote,  subject  to  the  dSf 
a!1  ordinar>-  majority,  the  motion  here  is  a  should  1 
smon  involving  the  mode  of  proc^edine*  in  tb\t  if  P 
and  could  not  affect  the  final  vote  1 1  h?USe  ; 

which  must  be  carried  by  two  thirds  The  amendment 
v,iJl  come  fairly  before  the  house  for  discussion  “vole 
s,™P<c  majority,  but  subject  the  house  to  the  contnU 
of  two  tun  us  in  the  first  instance  and  discussion  ir  • 
°b“’  you  can  neither  strike  not  nor “t  ^  “ 

in  that  houstThh^eito^bserved^voukl  'iicrbe'  d0'66^11^ 

question 

arrest  eve-v  nrorJ;,  ,tke  Power  of  a  minority  to 

the s ZTziirh  a  subj-ect  before  k  » 

the  vice  president  fom  ?f  ren  ?T‘  “  the  P°'ver  of 
in  the  eye  of  the  constitmL  h  *C'C  e  a  'luest"-'»,  though 
senate  at  ali.  1  le  ib  Il0[  a  member  of  the 

tion!it‘  simple  ques- 

or  may  not  determine  its  rnl  ^  r  . tlie  ll0llse  may 

convinced  that  the  constim?0  Pr°ceedlnS:  >’  now he  was 
question,  bv  dec  lari  n  «•  tJ  ,  ,  ^ddy  settIed  this 
to  establish  its  own  rules  hr  SlmU be comPetcnt 
necessary,  and  it  was  Hr  J  f  f  6  nature  of  things 
ceedings  the  simplest  &  ^  mlertaat  m  legislative  pro- 

would  apply  a  clumsy  annai*  7^  *!??  m°St  eli^ibIe — who 
ficient  was  at  hand?  ^  T'  **  atlls  whde  one  simple  andsuf- 

(Mr.  Franklin)  had  madrth^"116™^*''01"  N'  Carolina 
bore  no  analogy  to  form,  r  /  P^Per  distinction  ;  treaties 

proteedm g—^we  may  object 


(  8  ) 

to  a  treaty  in  the  whole  or  in  part,  even  after  it  has  been 
negociated  and  communicated  to  us  by  the  proper  autho¬ 
rity.  How  we  shall  proceed  upon  measures  originating 

with  ourselves  is  a  different  subject.  . 

Mr.  Dayton  never  suggested  that  we  have  no  right  to 
form  rules  for  our  own  proceedings — he  did  not  consider 
the  question  itself  so  much  a  constitutional  one  as  of 

expediency.  . 

Mr.  Hillhouse — .it  was  a  matter  of  indifference  to 

him  how  the  house  proceeded  on  the  question,  so  that 
the  rules  of  the  senate  may  not  be  embarrassed  -the 
question  appeared  to  him  now  to  be  principally  the  best 
mode  of  taking  up  the  subject  for  diliberation. 

Mr  Taylor _ the  gentleman  from  Jersey  (Mr.  Dayton; 

has  acknowleged  and  the  gentleman  from  Connecticut 
(Mr  Hillhouse)  have  concurred  in  the  sentiment,  that 
this  amendment  is  not  so  much  a  constitutional  question 
as  one  of  expediency  and  form.  In  this  view  the  gentle¬ 
men  must  consider  that  they  cannot  take  from  the  vice 
president  a  right  which  he  possesses  to  a  constitutional 
equalitvin  the  election,  as  the  constitution  declares  (ait. 
II. §  I.)  that  the  president  “shall  hold  his  office  during 
tc  the  term  of  four  years,  and  together  with  the  vice  presi- 
“  dent,  be  chosen  for  that  term.”  No  right  of  expedien¬ 
cy  can  find  room  in  this  place  ;  if  there  is  any,  gentlemen 
will  of  course  shew  it.  The  gentleman  from  Pennsylva¬ 
nia  (Mr.  Maclay)  had  felt  no  doubt  on  his  mind  on  the 

subject.  .  ,  ,  ,  .  ... 

Mr.  Butler  it  never  was  intended  by  the  constitu¬ 
tion  that  the  vice  president  should  have  a  vote  in  altering 
the  constitution,  whatever  of  the  arguments  of  gentlemen 
relate  to  that  point  falls  to  the  ground.  The  question  now 
before  the  house  is  whether  when  a  general  proposition 
is  brought  up,  shall  the  same  number  of  two  thirds  be 
requisite  to  decide  upon  its  admission  as  upon  the  subse¬ 
quent  and  perfecting  vote.  In  his  opinion  the  same 
number  was  necessary.  So  on  a  motion  formerly  made 
bv  a  gent  lemaff  from  Jersey  (Mr.  Dayton)  for  striking  out 
all  that  related  to  the  vice  president  he  thought  two-thirds 
were  necessary  when  a  vote  of  that  kind,  as  the  sti  iking 
out  would  go  to  an  alteration  of  the  constitution.  On 
minute  alterations  of  the  letter  or  phraseology  which  di 
not  involve  the  principle  perhaps  a  simple  majority  would 

be  sufficient.  . 

Mr.  Cocke  considered  the  house  as  competent  to  tne 

formation  of  its  own  rules ;  and  was  opposed  to  this 


(  9  ) 

new  mode  of  proceeding,  evidently  calculated  only  to 
embarras. 

Mh.  Hillhouse  thought  the  decision  on  this  question 
perfectly  analogous  to  the  cases  which  arise  on  treaties. 
Suppose  that  two  thirds  of  the  senate  present  concur  with 
the  proposition  of  the  bill  now  before  the  senate  from  the 
house  of  representatives,  and  a  majority  agree  to  strike 
out  apart. 

Mr.  AV  right— -gentlemen  cannot  or  will  not  keep  it  in 
mind  that  the  proposition  before  the  house  is  not  an  altera¬ 
tion  of  the  constitution,  but  the  formation  of  a  proposition 
upon  which  two-thirds  of  the  house  must  ultimately  de¬ 
cide  and  after  which  decision  must  go  to  the  several  states 
and  depend  for  its  final  adoption  upon  three-fourths  of 
the  states.  It  does  not,  as  the  gentleman  from  Connec¬ 
ticut  (Mr.  Hillhouse)  seems  to  assume  require  two-thirds 
of  the  senate  to  prepare  and  propose  an  amendment  to 
a  treaty  ;  it  is  the  principal  confirmation  or  ratification 
only  that  requires  two-thirds. 

Gen.  Jackson  was  not  averse  to  a  postponement  ; 
tho*  he  did  not  approve  of  the  idea  of  the  gentleman 
from  Jersey,  (Mr.  Dayton)  concerning  the  abolition  of  the 
vice  president’s  office.  If  the  senate  would  postpone,  a 
committee  might  be  appointed  who  would  search  for 
precedents  and  report  by  Monday,  or  on  some  other 
day.  He  moved  to  postpone— seconded  by  Mr.  Bradley 
— lost,  ayes  1 5,  noes,  1 6. 

Mr.  Pickering — .there  appears  to  me  so  close  an 
analogy  between  the  proposed  amendment  and  the  case 
of  treaties,  that  it  ought  to  govern.  The  striking  out  of 
a  pai  t  of  the  constitution  must  be  considered  as  an  amend¬ 
ment,  for  if  a  part  is  struck  out  it  is  no  longer  the  same 
thing — he  did  not  approve  of  subjecting  a  constitution  to 
repeated  alterations. 

Mr.  Israel  Smith— This  appears  to  be  a  very  im¬ 
portant  constitutional  question  ;  and  in  fixing  the  princi¬ 
ple  care  is  requisite,  though  he  did  not  see  why  it  should 
not  be  done  as  early  as  possible.  All  our  details  of  bills  go 
thro’  the  forms  of  reading  and  engrossing  ;  they  are  read 
and  considered  section  by  section  and  clause  by  clause, 
so  that  nothing  shall  be  admitted  but  by  a  majority. 

1  nen  why  not  in  the  debates  of  an  amendment  use  the 
same  precautions  ;  if  you  admit  amendments  to  the  con¬ 
stitution  by  a  common  majority,  it  appears  that  there  is  not 
the  same  precaution. 

B 


(  10  ) 


Mr.  Taylor — the  gentleman’s  arguments  were  entitl¬ 
ed  to  was  answer  ;  but  a  short  one  would  be  sufficient.  The 
analogy  with  treaties  is  no  more  perfect  than  that  with 
relation  to  ordinary  legislative  acts.  Treaties  originate 
with  the  executive,  with  a  power  of  which  there  is  always 
entertained  a  salutary  jealousy.  On  the  other  hand  a  law 
must  have  the  consent  of  the  president  after  it  has  passed 
both  houses,  if  the  president  refuses  his  consent  the  „ 
whole  is  incohate,  and  two  thirds  of  both  houses  may  non- 
obstant  pass  the  law  without  that  consent ;  and  here  only 
the  cases  are  analogous  ;  we  may  proceed  to  give  a  law 
perfection  in  its  preliminary  stages,  so  may  w7e  discuss  an 
amendment ;  but  to  the  ultimate  perfection  of  the  thing 
two  thirds  are  required.  If  the  doctrine  held  by  some 
gentlemen  were  to  prevail,  it  would  difficult  ever  to 
amend  the  constitution  be  its  imperfections  ever  so 
great. 

Mr.  Hillhouse  was  convinced  by  the  arguments  of 
the  gentleman  from  Vermont,  (Mr.  T.  Smith)  that  this 
was  a  question  of  the  first  magnitude.  In  the  case  ol  a 
law  to  which  the  President  denies  his  concurrence,  when 
it  is  returned  to  both  houses,  no  amendment  can  be  made 
thereto,  it  must  pass  altogether  by  two  thirds  or  is  lost. 
Again,  if  you  w  ere  to  move  to  strike  out  a  part  of  the 
amendment,  it  would  appear  by  the  vote  on  your  journals, 
that  the  question  had  not  been  decided  by  two  thirds. — 
In  the  passage  of  laws  it  is  understood  that  ail  parts  of  a 
law  must  have  a  majority  of  votes,  but  it  is  also  well  un¬ 
derstood  that  different  parts  of  the  same  law  will  not  ob¬ 
tain  the  same  number  of  votes,  and  that  some  will  vote 
against  particular  parts  who  approve  of  the  rest  ;  yet 
that  the  whole  must  have  a  majority.  He  never  doubted 
that  a  proposition  for  an  amendment  may  be  admitted  by 
a  majority  for  discussion  ;  but  it  was  no  more  a  conclu¬ 
sion  that  two  thirds  were  not  necessary  on  a  vote  involv¬ 
ing  the  principle  during  the  discussion,  because  there 
was  to  be  a  final  vote,  than  that  two  thirds  would  not 
be  necessary  on  the  last  vote  here,  because  it  is  not  final 
in  relation  to  the  other  house. 

Mr.  Anderson  proposed  to  postpone  to  to-morrow. 

Mr.  Tracy  also  wished  to  postpone  to  next  day. 

Mr.  Nicholas  hoped  the  question  would  be  decided 
before  the  house  rose — and  as  it  was  a  simple  question  of 
order  be  wished  the  wholesome  rule  of  the  other  house 
to  be  pursued,  to  decide  the  questions  of  order  without 
debate. 


(  n  ) 

The  question  to  postpone  being  taken  was  lost  Aves  14 
Noes  16. 

The  proposition  offered  by  the  presidentwas  then  called 
up  for  decision — .whether  two  thirds  were  necessary  Ayes 
13 — Noes  18. 

Mr.  Butler  desired  to  know  from  the  president  if  the 
question  now  decided  did  not  require  a  majority  of  two 
thirds. 

1  he  President  said  according  to  rule  of  the  house, 
the  question  required  only  a  principal  majority  to  decide 
it. 

Mr.  Dayton’s  motion  for  striking  out  what  related  to 
the  vice  president  was  called  for  and  the  question  taken 
on  striking  out — .Ayes  12 — .Noes  19. 

1  he  report  ol  the  committee  at  large  being  then  under 
consideration. 

Mr.  Nicholas  moved  to  strike  out  all  following  the 
Thh  line  of  the  report  to  the  end  for  the  purpose  of  inser¬ 
ting  the  following. 

u  ah  future  elections  of  president,  and  vice  presi¬ 
dent,  the  electors  shall  name  in  their  ballots  the  person 
voted  for  as  president,  and  in  distinct  ballots,  the  person 
voted  for  as  vice  president,  of  whom  one  at  least  shall  not 
be  an  inhabitant  of  the  same  state  with  themselves.  The 
person  voted  for  as  president,  having  a  majority  of  the 
votes  of  all  the  electors  appointed,  shall  be  the  president ; 
and  if  no  person  have  such  majority,  then  from  the  three 
highest  on  the  list  of  those  voted  for  as  president,  the 
house  of  representatives  shall  choose  the  president  in  the 
manner  directed  by  the  constitution.  The  person  having 
the  greatest  number  of  votes  as  vice  president,  shall  be 
the  vice  president;  and  in  case  of  an  equal  number  of 
votes  for  two  or  more  persons  for  vice  president,  they 
being  the  highest  on  the  list,  the  senate  shall  choose  the 
vice  president  from  those  having  such  equal  number,  in 
the  manner  directed  by  the  constitution;  but  no  person 
constitutionally  ineligible  to  the  office  of  president,  shall 
be  eligible  to  that  of  vice  president  of  the  United  States.” 

Mr.  Adams  objected  to  number  three  instead  of  5, 
and  wished  five  to  he  restored  as  the  house  of  represen¬ 
tatives  had  already  agreed  to  it — he  asked  for  a  division 
ol  the  question— which  was  not  agreed  to. 

Uj)on  the  question  for  striking  out  being  put  it  was 
carried  without  a  dissenting  voice,  and  the  amendment  of 
Mr.  Nicholas  adopted  in  the  report,  leaving  the  number 
blank. 


(  12  ) 


Mr.  Dayton  moved  to  fill  up  the  blank  with  the  num¬ 
ber  five — upon  the  question  being  put  it  was  lost  only 
eleven  rose  in  the  affirmative.  Lost 

Mr.  Anderson  moved  to  strike  out  the  word  two  in 

nineteenth  line— -Ayes  6 — Lost. 

Gen.  S.  Smith  then  moved  to  fill  the  blank  with  the 
word  three  which  was  carried — Ayes  18  to  1.3. 

Mr.  Adams  suggested  an  objection  to  the  amend¬ 
ment  as  it  stood  which  appeared  to  arise  out  of  the  trea¬ 
ty  of  cession  of  Louisiana.  His  original  idea  was  ad¬ 
verse  to  the  limitation  to  natural  born  citizens  as  super¬ 
fluous  ;  but  as  it  stood  the  terms  upon  which  Louisiana 
was  acquired  had  rendered  a  change  necessary,  for  it 
appeared  to  him  that  there  was  no  alternative,  but  to  ad¬ 
mit  those  born  in  Louisiana  as  well  as  tnos<~  born  in  the 
United  States  to  the  right  of  being  chosen  for  president 
and  vice  president. 

Mr.  Butler  said  that  if  there  wras  a  numerous  portion 
of  those  vffio  were  already  citizens  of  theU.  S.  who  can 
never  aspire  to  nor  be  eligible  for  those  situations  under 
the  constitution,  he  did  not  see  how  this  supposed  alter¬ 
native  could  be  upheld.  The  people  of  Louisiana,  under 
the  treaty  and  under  the  constitution  will  clearly  come 
under  the  description  of  naturlized  citizens.  While  he 
was  up  he  would  take  the  opportunity  of  speaking  to  the 
question  at  large,  and  to  examine  the  motives  which  pro¬ 
duced  this  amendment ;  the  principal  cause  of  solicitude 
on  this  subject  he  understood  to  be  the  base  intrigues 
which  were  said  to  have  been  carried  on  at  the  presidential 
election. 

Mr.  Wright  called  to  order— .and  a  short  altercation 
on  the  point  of  order  took  place. 

Mr.  Butler  proceeded. — He  had  on  a  former  day 
asked  if  he  might  in  this  stage  of  the  discussion  take  a 
view  of  the  wffiole  subject — the  house  had  decided  in  the 
affirmative.  When  the  proposition  was  first  laid  before 
the  house,  he  had  felt  a  disposition  in  favor  of  it ;  his 
mind  had  been  shocked  by  those  base  intrigues,  which 
had  taken  piace  at  the  late  presidential  election,  and  he 
was  hurried  by  indignation  into  a  temper  which  a  little 
cool  reflection  and  some  observation  on  a  particular 
mode  of  action  in  that  house,  had  checked  and  correct¬ 
ed,  and  finally  convinced  him  that  much  caution  was  re¬ 
quired  in  a  proceeding  of  that  nature,  and  that  in  all  human 
.probability  such  a  scene  of  intrigue  may  never  occur 


/ 


(  13  ) 

again,  that  it  became  questionable  whether  any  steps 
whatever  were  necessary.  Upon  a  careful  review  of  the 
subject,  it  appeared  to  him  that  an  alteration  might 
make  matters  worse  ;  for  though  at  present  there  has 
been  afforded,  by  a  course  of  accidents  and  oversights, 
room  for  intrigue,  it  would  be  preferable  to  leave  it  to 
the  care  and  discretion  of  the  states  at  large  to  pre¬ 
vent  the  recurrence  of  the  danger,  than  put  into 
tiie  hands  of  four  of  the  large  states  the  perpetual 
choice  of  president,  to  the  exclusion  of  the  other 
thirteen  states.  It  was  a  reasonable  principle  that 
every  state  should  in  turn  have  the  choice  of  the 
chief  magistrate  made  from  among  its  citizens.—— 
The  jealousy  of  the  small  states  was  natural  ;  and  he 
wouid  not  tire  the  house  by  bringing  to  their  ears,  ar¬ 
guments  from  the  history  of  Greece,  because  the  sub¬ 
ject  must  be  familiar  to  every  member  of  that  house, 
and  indeed  to  every  school  boy.  He  would  not  weary 
them  with  the  painful  history  of  the  conflicts  of  Athens 
and  Sparta,  ror  the  supremacy  of  Greece,  and  the  fa- 
.al  effects  their  quarrels  and  ambition  on  the  smaller 
states  oi  that  inveterate  confederacy  of  republics.—* 

1  lieir  history  is  that  of  all  nations  in  similar  cir¬ 
cumstances — for  man  is  man  in  every  clime,  and 
Passion  mingles  in  all  his  actions— if  the  smaller 
states  were  to  agree  to  this  amendment,  it  would 
ix  for  ever  the  combination  of  the  larger  states,— 
md  they  would  not  only  chuse  the  president  but  the  vice 
>resident  also  in  spite  of  the  smaller  states.  It  would  ill 
jecome  him  who  had  been  a  member  of  that  convention 
vhich  had  the  honor  ol  forming  the  present  constitution 
o  let  a  measure  such  as  the  present  pass  without  the  most 
I c liberate  in\estigation  01  its  effects.  JBefore  the  present 
onstitution  was  adopted  all  the  states  held  ail  equal  vote 
>n  ail  national  questions  ;  by  the  constitution  their  sove- 
eiguty  was  guaranteed,  and  the  instrument  of  guarantee 
nd  right  he  had  subscribed  his  name  to  as  a  representative 
S.  Caiolina,  and  had  used  all  the  zeal  and  influence  of 
^hich  he  was  possessed  to  promote  its  adoption.  To  give 
us  assent  to  any  violation  of  it,  ©r  any  unnecessary  inno- 
°n  *ts  principles  would  be  a  deviation  from  morality, 
lie  had  heard  it  said  with  confident  boldness  that  ex¬ 
perience  had  shewn  the  necessity  of  amendment — and 
rat  t  e  Constitution  had  already  undergone  correction, 
hat  gentlemen  should  shew  him  that  healing  a  wound 


(  14  ) 


✓ 


and  cutting  off  a  limb  were  operations  not  ofa  different  na¬ 
ture  and  different  degrees  of  danger.  He  did  not  mean,  nor 
did  he  apprehend  that  the  proposed  amendment  would  cut 
off  any  state  in  the  union,  but  he  was  persuaded  that  it 
would  cut  off  the  weight,  and  the  influence  of  many  of 
the  small  states. 

He  had  been  told  that  the  people  of  the  United  States 
called  for  this  amendment.  How  had  this  sense  been 
collected  ?  It  was  a  difficult  matter  to  collect  their 
sense ;  the  great  variety  of  habits,  the  diversity  of  cli¬ 
mates,  the  space  over  which  they  are  spread ;  the  differ¬ 
ent  modes  of  education,  and  way  of  thinking,  all  ren¬ 
der  it  difficult  to  ascertain  the  general  sentiment,  and  he 
who  says  the  people  at  large  wish  for  this  amendment,  in 
my  judgment  hazards  greatly  the  respectability  of  cha¬ 
racter. 

It  is  urged  that  the  people  did  feel  great  indignation  at 
the  scenes  which  were  exhibited  in  the  house  of  repre¬ 
sentatives  on  a  former  election — and  that  tiie  people  might 
be  hurried  into  strong  and  dangerous  measures  to  prevent 
the  recurrence  of  scenes  so  disreputable  to  repuolican 
government.  But  if  the  people  knew  and  would  see  all 
the  points  tending  to  one  extreme  line,  they  would  take 
care  to  enquire  whether  in  endeavouring  to  avoid  a  weather 
shore  they  had  not  forgotten  the  lee  one.  If  the  people 
are  to  have  a  master,  Mr.  president,  it  is  indifferent 
whether  they  are  to  be  bowed  down  by  an  insolent  individ¬ 
ual  oligarchy  or  a  proud  and  haughty  aristocracy  of  states  ; 
if  in  the  change  of  masters,  the  only  change  that  is  ex¬ 
perienced  is  a  change  of  habits. 

But  where,  sir,  is  the  danger  of  letting  the  choice  ul¬ 
timately  go  to  the  legislatures.  If  there  is  danger  it  is  cer¬ 
tainly  wrong  to  send  it  to  any  legislature  ;  yet  we  find 
the  constitution  admits  of  considerable  legislative  autho- 
ritv  in  the  organization  of  various  constitutional  powers ; 
the  fact  carries  with  it  some  evidence  of  the  prin¬ 
ciples  of  that  instrument.  What  is  the  purport  of  this 
amendment  but  to  cut  off  a  part  of  that  solemn  com¬ 
pact  the  result  of  four  long  months  deliberation, 
where  low  ambition  or  the  pride  of  states  never  found 
admission,  and  where  disinterested  patriotism  and 
the  light  of  virtue  only  found  access. — But  sir, 
there  are  motives  operating  in  this  body  and  pro¬ 
moting  this  amendment,  which,  though  not  promi¬ 
nent  are  powerful ;  it  is  said  if  you  do  not  alter  the  con- 


(  15  ) 


stitution,  the  people  called  federalists  “will  send  a  vice- 
pie sklent  into  tnat  chair;  and  this  in  truth  is  the  pivot 
upon  which  the  whole  turns.  When  we  were  as  re¬ 
publicans  out  of  power,  did  we  not  reprobate  such  con¬ 
duct  r  Shall  wre  then  do  as  they  did?  Shall  we  revive 
party  heat?  No,  he  hoped  not;  but  that  by  a  just  and 
mild  policy  we  should  evince  that  we  would  do  as  w© 
would  be  done  by. 

a  he  question  was  immediately  taken  on  the  report  and 
carried — Ayes  20 — Noes  11. 

iVlr.  Adams  said  that  though  he  had  voted  for  the 
amendment  he  disapproved  of  the  alteration  from  Jive  to 
un  ee.  He  felt,  however,  though  a  representative  of  a 
large  state,  a  deep  interest  in  this  question-— was  there 
no  champion  of  the  small  states  to  stand  up  in  that  house 
and  vindicate  their  rights. 

Mr.  Dayton  was  not  here  as  champion  of  the  small 
s«.ates  but  as  the  representative  of  one  of  them  he  w  as 
ready  to  enter  his  protest  against  being  delivered  over 

bound  hand  and  foot  to  four  or  five  of  the  large  states _ 

1  he  gentleman  from  South  Carolina  had  offered  argu-  ' 
ments  on  the  subject  irrefutable.  The  little  portion  of 
influence  left  us  he  has  demonstrated  to  be  now  about 
to  be  taken  away,  and  the  gentleman  from  Massachu¬ 
setts,  (Mr.  Adams)  after  aiding  the  effort  with  his  vote, 
has  taken  mercy  upon  us  and  after  he  has  helped  to 

knock  us  down,  asks  us  why  wre  do  not  stand  up  for  our¬ 
selves. 


Gkn.  S.  Smith  was  not  surprized  to  find  those  wdio 
v  ere  members  of  the  old  congress,  in  which  the  subject  of 
large  and  small  states  was  frequently  agitated,  familiar 
w  ith  the  subject  of  those  days.  Under  the  present  con¬ 
stitution  he  had  been  ten  years  in  congress  and  had  never 
heal’d  the  subject  agitated  nor  the  least  ground  given  for 
any  apprehension  on  this  subject ;  he  had  seen  the  small 
states  possess  all  the  advantages  secured  to  them  with¬ 
out  even  a  moment’s  jealousy.  The  state  he  represent¬ 
ed,  was  once  considered  a  large  state,  the  encrease  of 
others  in  population,  however,  had  rendered  it  properly 
belonging  to  neither  class;  it  was  an  intermediate  state  • 
out  lrom  the  natural  progression  of  the  union  it  must 
oe  ranked  among  the  small  states.  In  this  view  then 
he  could  speak  dispassionately,  and  the  small  states 
could  not  with  reason  be  apprehensive  that  a  state, 
vduch  must  speedily  take  rank  among  them,  could  be 


I 


(  16  ') 

indifferent  to  their  rights  if  there  were  the  least  cause 

for  apprehension.  .  . 

He  had  moved  for  the  insertion  of  three  instead  of 

five  •  with  this  precise  and  special  intention — that  the 
fieoflic  themselves  should  have  the  power  of  electing  the 
president  and  vice  president ;  and  that  intrigues  snould 
be  thereby  for  ever  frustrated.  The  intention  of  the 
convention  was  that  the  election  of  the  chief  officers  of 
the  government  should  come  as  immediately  from  the 
people  as  was  practicable,  and  that  the  legislature  should 
possess  the  power,  only  in  such  an  exigency  as  accident 
might  give  birth  to  but  which  they  had  not  considered 
as  likely  to  occur.  Had  it  not  been  for  these  considera¬ 
tions  the  large  states  never  would  have  given  up  the 
advantages  which  they  held  in  point  of  numbers.  If  the 
number  five  were  to  be  continued,  and  the  house  of  re¬ 
presentatives  made  the  last  resort,  he  would  undertake 
to  sav  that  four  times  out  of  five  the  choice  w  ould  de- 
volve'  unon  them.  Diminish  the  number  to  three  and 
the  compromise  of  two  and  two  between  the  opposing 
parties  which  has  heretofore  prevailed  will  be  superce- 
ded  bv  an  opposition  of  one  on  each  side  for  president 
and  a  third  between  both  for  vice  president.  '1  he  ques¬ 
tion  of  small  and  large  state  interests  is  not  at  all,  in¬ 
volved  in  this  question ;  it  is  a  mere  matter  of  imagina¬ 
tion;  and  if  it  were  at  all  real,  it  would  perhaps  be 
found  to  operate  differently  from  what  is  supposed— 
There  are  many  of  the  states  which  are  now  small  m 
reference  to  their  population,  which  must  already  mel  thftj 
influence,  if  any  exists  of  their  being  very  soon  lixely  to 
become  large  States— Georgia,  Tennessee  and  Ken¬ 
tucky  were  of  this  description;  in  less  than  ten  years 
these  states  will  be  larger  than  many  now  cahed  large 

states _ and  their  circumstances  alone  would  be  a^  suffi¬ 

cient  guard  against  those  dangers  apprehended.- 
He  would  be  one  of  the  last  to  doubt  the  virtue  and  the 
wisdom  which  framed  the  present  constitution ;  but  like 
other  gentlemen,  he  was  aware  of  the  fallibility  of  the 
wisest  of  mankind  ;  the  founders  of  that  constitution 
had  tauq-ht  him  the  important  lesson,  for  they  had  pro- 
vi ded  in" that  instrument,  a  remedy  for  their  own  inex¬ 
perience  or  fallibility  ;  and  time  has  in  this  instance,  as 
in  numerous  others,  proved  their  uncommon  wisdom, 
for  evils  have  arisen  which  though  they  could  not  lore- 
see,  they  have  provided  the  means  to  correct  them  >— 


C  17  ) 


they  could  not  have  foreseen  the  danger  to  which  the 
country  was  exposed  at  the  late  election  ;  they  could 
not  have  believed  that  at  so  short  a  distance  from  the 
foundation  of  the  constitution,,  the  country  escaped  from 
a  civil  war,  only  from  the  prevalence  of  that  kind  tern- 
per  and  magnanimity  in  the  legislature,  which  prevailed 
in  the  convention  itself.  And  shall  we  not  do  ail  that  is 
in  our  power  to  avoid  the  recurrence  of  similar  danger. 
Had  the  gentleman  from  South  Carolina,  (Mr.  Butler,) 
been  present  at  that  critical  period,  he  would  have  felt, 
as  many  oi  his  friends  felt,  a  serious  and  restless  anxie¬ 
ty  Two  candidates  before  the  House,  partv  spirit 
high-  the  one  determined  to  support  the  candidate  up¬ 
on  whom  public  affection  and  confidence  had  unequivo¬ 
cally  centered,  the  other  seeking  to  place  in  the  execu¬ 
tive  chair,  not  a  candidate  of  their  original  choice,  but  a 
candidate  through  whom  they  wished" to  retain  at  least 
a  share  of  power;  unsuccessful  in  that  effort  bringing 
forward  a  proposition  to  create  a  president — and  how, 
by  a  law  to  be  passed  for  the  purpose,  and  in  which  the 
person  was  to  be  named.  Leaving  the  votes  and  choice 
oi  the  people  out  of  consideration  altogether.  Had  this 
been  effected,  what  other  result  would  follow,  but  civil 
war.  W  ithout  pretending  to  be  in  the  counsels  of  ei¬ 
ther  party  on  that  occasion,  he  believed  that  civil  war  was 
seriously  apprehended,  and  so  much  so,  that  he  felt  per¬ 
fectly  convinced,  that  had  a  choice  been  made  in  the 
v.ay  proposed,  and  a  person  could  be  found  to  accept  it, 
that  his  head  would  not  have  remained  on  his  shoulders 
lor  twenty-four  hours  afterwards.  Dangers  of  this  kind 
.  was  sollcitoiis  to  avoid  ;  and  by  that  mild,  and  be¬ 
nignant  mode  provided  by  the  constitution,  that  of 
amendment  to  the  constitution. 

Mr.  Hillhouse.  In  avoiding  rocks  he  feared  we 
were  steering  for  quicksands.  The  evils  that  are  past 
w  e  know  ;  tnose  that  may  arrive  we  know  not.  The 
Dbject  proposed  is  to  provide  against  a  storm,  pheno¬ 
menons  not  rare  or  un frequent  in  republics.  You  are 
ailed  upon  to  act  upon  a  calculation  that  all  the  states 
n  the  union  will  vote  for  the  same  persons,  or  that  each 
two  parties  opposed  in  politics  will  have  an  individual 
candidate.  Suppose  the  two  candidates  who  had  the 
u^hest  votes  on  the  late  election  had  been  the  cham- 
uons  of  two  opposite  parties,  and  that  neither  would 
ecede,  what  then  would  be  the  consequence  ;  according 

C  ° 


(  18  ) 


✓ 


to  the  gentleman  from  Maryland,  a  civil  war  !  When 
men  are  bent  on  a  favorite  pursuit,  they  are  too  apt  to  shut 
out  all  consequences  which  do  not  bear  out  their  object. 
Thus  gentlemen  can  very  well  discover  the  danger  they 
have  escaped,  but  they  do  not  perceive  that  the  op¬ 
position  of  two  powerful  candidates,  gives  beside  the 
hazard  of  civil  war,  the  hazard  of  placing  one  of  them 
on  a  permanent  throne.  The  first  magistracy  of  this 
nation  is  an  object  capable  of  exciting  ambition  ;  and  no 
doubt  it  would  one  day  or  other  be  sought  after  by  dan¬ 
gerous  and  enterprizing  men.  It  was  to  place  a  check 
upon  this  ambition  that  the  constitution  provided  a  com¬ 
petitor  for  the  chief  magistrate,  and  declared  that  both 
should  not  be  chosen  from  the  same  state.  Here  also 
was  a  guard  against  state  pride,  and  this  guard  you  wish 
to  take  away  ;  and  what  will  be  the  consequence  ? 
Instead  of  two  or  three  or  five,  you  will  have  as  many 
candidates  as  there  are  states  in  the  union.  By  voting 
for  twro  persons  without  designation,  the  states  stood 
a  double  chance  of  a  majority,  besides  the  chance  of  a 
majority  of  all  the  states  in  the  house  of  representa¬ 
tives.  For  once  or  twice  there  may  be  such  an  organ¬ 
ization  of  party  as  will  secure  for  a  conspicuous  character 
the  majority  of  votes.  But  that  character  cannot  live 
always.  The  evil  of  the  last  election  will  recur  and  be 
greaterbecause  the  whole  field  will  be  to  range  in. 

He  hoped  this  amendment  would  not  be  hastily  adopt¬ 
ed,  the  subsisting  mode  was  the  result  of  much  delibera¬ 
tion  and  solemn  compromise,  after  having  long  agitated 
the  convention.  It  is  now  attacked  by  party  ;  whatever 
gentlemen  may  say  to  the  contrary  ;  the  gentleman  from 
South  Carolina  has  confessed  it.  If  gentlemen  will  suffer 
themselves  to  lock  forward  without  passion  great  good 
may  come  from  the  present  mode ;  men  of  each  of  the 
parties  may  hold  the  two  principal  offices  of  the  govern¬ 
ment;  they  will  be  checks  upon  each  other;  our  govern¬ 
ment  is  composed  of  checks  ;  and  let  us  preserve  it 
from  party  spirit  which  has  been  tyrannical  in  all  ages. 
These  checks  take  off  the  fiery  edge  of  persecution.  Would 
nbtone  ofa  different  party  placed  in  that  chair  tend  to  check 
and  preserve  in  temper  the  ever  heated  zeal  of  party  ;  he 
would  conduct  himself  with  firmness  because  of  the  minor 
party;  he  would  take  care  that  the  majority  should  have  jus¬ 
tice,  but  he  would  also  guard  the  minority  from  oppression. 
If  we  cannot  destroy  party  we  ought  to  place  every  check 


9 


(  19  ) 


upon  it.  Ifthe  present  amendment  pass  nine  out  often  times 
the  election  will  go  to  the  other  house,  and  then  the  only 
difference  will  be  that  you  had  a  comedy  the  last  time, 
and  you’ll  have  a  tragedy  the  next.  Tho’  it  was  impos¬ 
sible  to  prevent  party  altogether,  much  more  when  po¬ 
pulation  and  luxury  encrease,  and  corruption  and  vice 
with  them,  it  was  prudent  to  preserve  as  many  checks 
against  it  as  was  practicable.  He  had  been*  long  in 
congress  and  saw  the  conflicting  interests  of  large  and 
small  states  operate;  the  time  may  not  be  remote  when  par¬ 
ty  will  adopt  new  designations — federal  and  republican  par¬ 
ties  have  had  their  day — <and  their  designations  will  not  last 
long ;  and  the  ground  of  difference  between  parties  will  not 
be  the  same  that  it  has  been ;  new  names  and  new  views 
will  be  taken,  it  has  been  the  course  in  all  nations. — 
1  here  has  not  yet  been  a  rotation  of  offices  in  which 
the  small  states  couid  look  for  their  share,  but  the  time 
may,  it  will  come  when  the  small  will  wrestle  with  the 
large  states  for  their  rights.  Each  state  has  felt  that 
though  its  limits  were  not  so  extensive  as  others,  its 
rights  were  not  disregarded.  Suffer  this  confidence  to  be 
done  away,  and  you  may  bid  adieu  to  it;  three  or  four 
large  states  will  take  upon  them  in  rotation  to  nominate 
the  executive,  and  the  second  officer  also.  This  will 
be  felt.  A  fanciful  difference  in  politics  is  the  bug  bear 
of  party  now,  because  no  other  no  real  cause  of  differ¬ 
ence  has  subsisted.  But  remedy  will  create  a  real  dis¬ 
ease.  States  like  individuals  may  say  we  will  be  of  no 
party,  and  whenever  this  shall  happen  blood  will  follow. 
Mr.  Bradley  moved  an  adjournment — agreed. 

NOVEMBER  24. 

1  he  consideration  of  the  report  on  the  amendment  to 
the  constitution  being  taken  up  ;  the  amendment  as 
diiected  to  be  printed  on  the  preceding  day  was  taken 
up,  and  read  as  follows — 

1  Rexolved,  by  the  senate  and  house  of  representatives  of  the 
~  United  States  of  America,  in  congress  assembled,  two  thirds 

3  of  both  houses  concurring,  that  the  following  amendment  be 

4  proposed  to  the  legislatures  of  the  several  states  asanamend- 

5  ment  to  the  constitution  of  the  United  States  which  when  ra- 

6  tified  by  three  fourths  of  the  said  legislatures,  shall  be  valid  to 

7  all  intents  and  purposes  as  a  part  of  the  said  constitution,  viz. 
«  In  all  future  elections  of  president  and  vice  president,  the 
9  electors  shall  name  in  their  ballots  the  person  voted  for  as  presi- 

30  dent,  and  in  distinct  ballots,  the  person  voted  for  as  vice  presi¬ 
ll  dent,  of  whom  1  at  least  shall  not  be  an  inhabitant  of  the  same 
12  state  with  themselves.  The  person  voted  for  as  president  having 


(  20  ) 


\ 


t 


13  a  majority  of  the  votes  of  all  the  electors  appointed,  shall  be 

14  the  president ;  and  if  no  person  have  such  majority,  then  from 

15  the  3  highest  on  the  list  cf  those  voted  for  as  president,  the 

16  house  of  representatives  shall  choose  the  president  in  the  man- 

17  ner  directed  by  the  constitution.  The  person  having  the  greatest 

18  number  of  votes  as  vice  president,  shall  be  the  vice  president  ; 

19  and  in  case. of  an  equal  number  of  votes  for  2  or  more  persons 

20  for  vice  president,  they  being  the  highest  on  the  list,  the  senate 

21  shall  choose  the  vice  president  from  those  having  such  equal 

22  number,  in  the  manner  directed  by  the  constitution;  butnoper- 

23  son  constitutionally  ineligible  to  the  office  of  president,  shall  be 

24  eligible  to  that  of  the  vice  president  of  the  United  States. 

Mr.  Bradley  did  cot  approve  of  the  amendment  as 

it  now  steed ;  he  could  not  see  why  the  vice  president 
should  not  be  chosen  by  a  majority  as  well  as  the  presi¬ 
dent.  He  considered  the  possibility  of  the  vice  president 
becoming  president  by  any  casualty,  as  a  good  reason 
for  both  being  chosen  by  the  same  ratio  of  numbers.  If 
it  should  be  carried  as  the  amendment  now  stands,  the 


office  cf  vice  president  would  be  hawked  about  at  market 
and  given  as  change  for  votes  for  the  presidency.  And 
what  would  be  the  effect,  that  it  might  so  happen  that  a 
citizen  chosen  only  for  the  office  of  vice  president  might, 
by  the  death  of  tne  president,  tho’  chosen  only  by  a  plu¬ 
rality  become  president  and  hold  the  office  for  three  years 
eleven  months  and  thirty  days.  He  did  not  approve  of 
many  arguments  which  he  had  heard  on  the  preceding 
day,  and  however  disposed  to  concur  in  the  principle  of 
designation  for  the  two  offices,  he  could  not  give  it  his 
vote  in  tne  present  shape— he  would  in  order  to  render  the 
report  more  congenial  with  his  wishes  move  to  strike  out 
the  following  words  beginning  with  the  words  shall  in  the 
18th  line  to  constitution  in  the  22d — .he  was  seconded. 

Mr.  Tracy  opposed  the  striking  out,  as  not  in  order, 
it  being  an  amendment  to  an  amendment  already  receiv¬ 
ed  by-the  house — he  thought  however  it  would  be  in  or¬ 


der  to  reconcile  the  whole,  and  then  any  part  might  be 
amended. 


i  he  President  said  that  the  motion  for  amending 
the  amendment  was  not  in  order;  but  if  the  member  from 
\  erment,  or  any  other  gentleman  of  the  majority  on  the 
question  yesterday,  chose  to  move  for  a  recommittal,  or 
even  to  refer  the  report  to  a  select  committee,  it  would 
be  in  order. 

Mr.  Bradley  said  that  he  held  it  to  be  a  sound  truth 
that  in  legislating  we  ought  not  to  be  afraid  of  using 
words  to  express  our  meaning  us  far  as  language  could 


(  21  ) 


go  ;  he  thought  that  there  was  a  deficiency  of  words  and 
a  deficiency  of  meaning,  which  if  suffered  to  go  abroad 
would  be  attended  by  great  inconvenience.  He  would 
move  for  the  reference  of  the  report  to  a  select  commit¬ 
tee  and  that  they  be  instructed  to  insert  in  the  room  of 
tiie  words  he  before  proposed  to  omit,  the  words — if  such 
?iumber  be  the  majority  of  the  whole  number  of  electors 
ajipointed ,  and  if  no  person  have  a  majority ,  then  from  the. 

t~vo  highest  on  the  list  the  senate  shall  chuse  the  vice  p resi¬ 
dent. 


He  would  also  move  that  the  committee  be  instructed 
to  insert  after  the  word  president  in  the  6th  line,  the  follow¬ 
ing  words — . But  in  choosing  the  president  the  votes  shall  be 
taken  by  states,  the  representatives  from  each  state  having 
•one  vote  ;  and  there  shall  be  two  thirds  of  the  representation 
\of  the  states  to  form  a  quorum. 

Mr — 'W  right  to  give  the  gentleman  an  opportunity 
to  discuss  his  subject,  as  one  of  the  majority  on  the 

question  of  yesterday  he  moved  for  an  reconsideration 
of  the  whole  report. 

Mr.  Bradlei  was  not  disposed  to  favor  reconsidera¬ 
tions,  the  custom  he  took  was  borrowed  from  the  town- 
meetings,  to  the  eastward  ;  if  this  practice  were  to  be 
pursued,  we  should  be  called  upon  at  the  end  of  a  ses¬ 
sion  to  reconsider  the  proceedings  of  the  first,  and  re¬ 
duce  the  Senate  even  below  a  New  England  town-meet- 
ng. 

Mr.  Adams  had  no  objection  to  a  recommitment,  as 
Ae  considered  that  one  or  two  further  alterations  were 
extremely  necessary.  He  could  foresee  a  probable  case 
vhich  he  thought  ought  to  be  provided  against.  And 

me  or  two  simple  expressions  would  answer  the  end _ 

[ie  could  conceive  no  election  to  take  place  under  the 
orm  proposed,  and  the  election  of  a  chief  magistrate 
vas  not  in  his  mind  a  matter  of  small  moment.  He 
vould  suppose  that  there  should  not  be  three  persons 
oted  for  ;  or  that  though  three  or  more  should  be  vot- 

:d  for,  that  none  should  have  an  actual  majority. _ 

vVhat  would  your  situation  be  then  ?  He  would  suppose 
mother  case,  that  there  were  two  who  should  have  the 
lighest,  and  yet  an  equal  number  of  votes,  and  that 
here  were  to  be  a  third  and  fourth  who  should  have 
qual  numbers  *dso— how  could  the  three  highest  be 
ound  in  this  case,  when  the  third  and  fourth  persons 
.  /ere  equally  high  in  votes. 


X 


(  22  ) 


Mr.  Taylor  was  against  the  recommittal,  becailse 
he  had  no  doubt  that  the  ingenuity  of  gentlemen  would 
upon  amendment  in  a  committee  discover  new  defects 
and  motives  for  amendment.  The  gentleman  from 
Vermont  (Mr.  Bradley)  had  however  stated  anew  idea; 
the  constitution  does  not  require  a  majority  in  the  choice 
of  a  vice  president,  after  the  choice  of  president  shall 
have  been  made  but  says  “  in  every  case ,  after  the  choice 
of  a  president,  the  person  having  the  greatest  number 
of  votes  shall  be  the  vice  president” — purposely  omitting 
u  a  majority  of  the  whole,”  as  in  the  case  of  the  presi¬ 
dent,  but  the  gentleman  who  disapproves  of  amending 
wishes  to  carry  amendment  farther  and  to  render  the 
difficulty  more  difficult.  He  would  oppose  recommit¬ 
ment,  for  if  this  new  principle  were  necessary  the  gen¬ 
tleman  could  introduce  it  in  the  shape  of  a  new  amend¬ 
ment  to  the  constitution.  With  respect  to  the  simple 
expressions  which  the  gentleman  from  Massachusetts 
proposed  to  insert,  and  which  appeared  to  him  to  promise 
with  so  much  facility  such  great  advantages,  he  should 
be  glad  to  see  them  introduced.  But  he  thought  that 
in  one  case  as  well  as  in  the  other,  of  those  which  he 
had  suggested  as  necessary  to  provide  against,  no  diffi¬ 
culty  whatever  existed.  For  it  appeared  plain  enough 
to  him  that  if  only  two  had  the  highest  numbers  and 
equal,  that  one  of  them  two  would  be  preferred  to  an 
extension  of  choice  to  a  third  who  had  not  an  equal 
number  of  votes,  and  that  the  selection  of  one  of  them 
two  would  be  in  fact  a  choice  from  one  of  the  three  highest 
so  in  the  case  of  the  third  and  fourth,  though  they  might 
have  also  an  equal  number  of  votes,  he  could  perceive 
no  difficulty,  because  if  there  were  even  four  of  them, 
the  choice  out  of  any  three  of  the  four  would  be  a  cor¬ 
rect  choice. 

Mr.  Dayton — gentlemen  appear  to  forget  that  the 
chair  has  decided  that  no  words  can  be  introduced  into 
the  amendment  already  adopted,  and  frequently  that  a 
recommitment  is  the  only  course  left.  The  gentleman 
from  Virginia,  (Mr.  Taylor,)  objects  to  the  proposition 
of  the  gentleman  from  Vermont,  (Mr.  Bradley,)  upon 
the  ground  that  it  seems  too  sacred  to  touch  it  as  there  ex¬ 
ists  already  a  different  principle  in  the  constitution  ; 
but  though  he  considers  it  too  sacred,  he  nevertheless 
recommends  as  a  remedy  the  introduction  of  a  new  re¬ 
solution  separably  and  in  opposition  to  that  sacred  prin- 


(  23  ) 


ciple.  We  have  been  hitherto  trammelled  by  incon¬ 
gruous  rules — but  here  an  amendment  is  proposed  to  be 
got  rid  of  by  a  side  wind. 

Mr.  Tracy  could  not  see  why  a  Vice  President  should 
not  be  chosen  by  a  majority  instead  of  •  a  plurality  as 
well  as  President — he  was  for  the  recommitment. 

Gen.  S.  Smith  supposed  that  if  the  motion  of  the 
gentleman  from  Vermont,  should  be  lost,  it  would  be 
then  in  order  to  move  a  reconsideration.  He  could  not 
see  with  the  gentleman  from  Vermont,  any  thing  ex¬ 
ceptionable  in  town-meetings,  nor  could  he  discover  that 
town-meetings  in  New  England  were  more  exception¬ 
able  than  elsewhere,  unless  there  was  any  thing  spe¬ 
cially  wrong  transacted  at  them.  The  practice  of  re¬ 
consideration  was  familiar  in  all  legislative  bodies  ;  and 
it  was  in  the  nature  of  legislation  that  it  should  be  so ; 
for  new  knowledge  as  well  as  new  circumstances  render 
it  necessary  to  reconsider  and  revive  long  established 
laws. 

The  motion  for  referring  to  a  select  committee  was 
then  lost — ayes  15,  noes  16. 

Mr.  Wright  then  renewed  his  motion  for  a  recon¬ 
sideration. 

Mr.  Butler  disapproved  of  the  rule  of  the  house 
which  authorized  this  mode  of  reconsideration  in  so 
loose  a  way  ;  he  thought  that  no  subject  discussed  should 
be  reconsidered  without  an  unanimous  vote  ;  if  that 
practice  was  pursued  it  would  prevent  a  great  abuse  and 
waste  of  time  ;  in  the  present  mode  it  matters  not  whether 
it  is  a  thin  or  a  full  house  ;  any  member  of  the  ma¬ 
jority  has  the  house  at  his  mercy. 

Mr.  Tracy  did  not  comprehend  the  meaning  of  the 
gentleman  in  demanding  a  reconsideration— -did  he  mean 
to  reconsider  the  whole  day’s  work  ? 

Gen.  S.  Smith  said  his  colleague  meant  as  he  meant, 
to  reconsider  the  amendment  made  yesterday  to  the  re¬ 
port  of  the  committee. 

Mr.  1  racy  did  net  suppose  that  the  house  was  to  re¬ 
consider  the  rule  of  order  as  to  the  majority — nor  six  or 
seven  other  motions  ;  but  unless  the  gentleman  sficci/i- 
catets  the  subject  to  be  reconsidered,  the  motion  will 
necessarily  comprehend  the  whole  day’s  work. 

Mr.  Dayton  understood  it  to  be  confined  to  the  amend¬ 
ment  of  the  resolution. 

Mr.  Plumer  requested  the  motion  to  be  committed 
to  writing  which  was  done  and  the  motion  was  carried. 


(  24  ) 


Mr.  Bradley  then  renewed  his  motion  as  before  for 
striking  out  and  inserting  after  the  18th  line— this  amend¬ 
ment  he  thought  of  great  importance,  as  under  the  con¬ 
stitution  as  it  now  stands  the  vice  president  must  be  a 
person  of  the  highest  respectability  well  known  and  of 
established  reputation  throughout  the  United  States ;  but 
if  the  discriminating  principle  prevails  without  some 
precautions  such  as  the  amendment  proposed,  that 
assurance  would  be  lost;  and  he  should  not  be  surprized 
to  hear  of  as  many  candidates  for  vice  president  as 
are  states,  as  the  votes  for  president,  would  be  offered  in 
truck  for  votes  for  vice  president  and  an  enterpfizing 
character  might  employ  his  emissaries  through  all  the 
states  to  purchase  them,  and  your  amendment  lays  the 
foundation  for  intrigues.  He  was  desirous  that  he  who 
is  to  be  set  up  as  candidate  for  the  vice  president  should 
as  at  present  be  equally  respectable,  or  that  there  should 
be  none ;  that  at  least  he  should  be  the  second  man  in  the 
nation ;  adopt  the  designating  principle  without  the  most 
guarded  precautions,  and  you  lose  that  assurance. 

Mr.  Hillhouse  accorded  with  the  gentleman’s 
amendment  as  it  naturally  grows  out  cf  the  principles 
of  the  report.  There  was  not  a  word  in  the  consitution 
about  voting  for  the  V.  President ,  no  vote  in  fact  is  given 
for  such  an  office  ;  the  alteration  to  desgination  alters 
the  whole  thing  ;  and  as  the  gentleman  has  expressed 
will  send  the  V.  P.  office  into  market  to  be  handed  about 
as  change  for  the  candidate  supported  by  larger  states  ; 
he  would  prefer  leaving  the  choice  of  president  and  vice 
president  at  once  to  the  larger  states  than  take  it  in  this 
way.  In  calm  times  any  government  may  work  well, 
but  he  wished  in  calm  times  to  provide  against  storms. 
If  we  designate  any  then  designate  both  and  on  equal  terms. 

Mr.  Wright’s  pursuit  was  the  discriminating  princi¬ 
ple,  or  the  designating  principle  in  its  most  simple  and 
efficacious  form  ;  but  this  by  no  means  authorized  the 
the  abridging  of  the  rights  of  the  small  states  ;  nor  could 
it  be  sh  ewn  in  argument  that  the  designating  principle 
would  have  such  an  effect  ;  the  provision  that  not  more 
than  one  of  the  two  candidates  should  be  voted  for  in  the 
several  states,  shewed  that  the  lesser  states  were  equally 
guarded  with  the  rest ;  upon  the  incidental  election  in  the 
house  of  representatives  the  same  guardianship  of  the 
smaller  states  was  conspicuous— .the  union  was  the  re¬ 
sult  of  a  fair  compromise,  and  the  designation  in  no  way 


(  5  ) 


departs  from  it.  The  amendment  proposed,  so  far  as  it 
/vent  to  decide  the  choice  of  vice  president  by  a  majority 
histead  of  a  plurality,  as  the  constitution  now  stands,  he 
approved,  as  it  was  the  principle  most  consonant  with  the 
spirit  of  representative  democracy,  that  no  officer  should 
be  elected  but  by  a  majority  ;  as  it  now  stands  admitting 
a  choice  by  a  plurality,  there  were  contrary  principles 
received.  He  saw  no  difficulty  in  the  event  of  an  election 
ot  \  ice  president  not  being  made,  as  it  might  be  done  by 
this  house.  '  The  idea  he  acknowleged  he  had  borrowed 
from  the  resolutions  of  March  4,  1800,  passed  by  the 
legislature  of  Massachusetts,  and  forwarded  to  thpir  re¬ 
presentatives  in  congress  ;  the  recommendation  of  an 
alteration  in  this  part  of  the  constitution  originated  in 

V  ermoht,  but  was  adopted  and  forwarded  by  Massachu¬ 
setts. 

Commonwealth  of  Massachusetts . 

,  ,  .  ,  ^  Senate,  Feb.  28th,  1800. 

Whereas  the  legislature  of  the  state  of  Vermont,  on  the  fifth 

day  of  November,  last,  passed  two  resolves  in  the  words  follow- 
mg  viz. 

State  of  Vermont. 

In  General  Assembly ,  Windsor,  November  5th,  1799. 

Resolved,  That  the  senators  and  representatives  of  this  state 
in  the  congress  of  the  United  States  be,  and  they  hereby  are 
lequested  to  use  their  best  endeavours,  that  congress  propose  to 
the  legislatures  of  the  several  states  the  following  amendment 
to  the  constitution  of  the  United  States,  viz.  That  the  electors 
of  president  and  vice  president  in  giving  in  their  votes,  shall 
respectively  distinguish  the  person  whom  they  desire  to  be  pre¬ 
sident  from  the  one  they  desire  to  be  vice  president,  by  annexing 
the  words  president  or  vice  president,  as  the  case  may  require  to 
the  propei  name  voted  for;  and  the  person  having  the  greatest 
number  of  votes  for  vice  president,  if  such  number  be  a  majori¬ 
ty  of  the  whole  number  of  electors  chosen,  shall  be  vice  president  • 
and  if  there  be  no  choice,  and  two  or  more  persons  shall  have 
the  highest  number  of  votes,  and  those  equal,  the  senate  shall 

immediately  choose  by  ballot  one  of  them  for  vice  president  • _ 

and  if  no  person  have  a  majority,  then  from  the  five  highest ’on 
the  list,  the  senate  shall  in  like  manner  choose  the  vice  president 
but  in  choosing  the  vice  president,  the  votes  shall  be  taken  by 
states,  the  senators  from  each  state  having  one  vote.  A  quorum 
for  this  purpose  shall  consist  of  a  member  or  members  from  two 
thirds  of  the  states  ;  and  a  majority  of  all  the  states  shall  be 
necessary  to  a  choice.  And  in  case  the  senators  and  representa¬ 
tives  of  this  state  in  congress,  shall  find  that  the  aforesaid 
amendment  is  not  conformable  to  the  sentiments  of  a  constitu¬ 
tional  majority  of  both  branches  of  the  national  legislature,  they 
are  herelw  requested  so  to  modify  the  same  as  to  meet  the  senti¬ 
ments  of  such  majority. 


D 


(  26  ) 


Provided,  however,  that  any  amendment  which  may  be  agreed 
on,  shall  oblige  the  electors  to  designate  the  person  they  desire 
to  be  President,  from  the  one  whom  they  desire  to  be  Vice  Presi¬ 
dent. 

Resolved,  That  his  excellency  the  governor  be  requested  forth¬ 
with  to  transmit  the  same  to  the  supreme  executives  of  the  seve* 
ral  states.  Which  resolves  have  been  communicated  by  the  su¬ 
preme  executive  of  the  state  of  Vermont,  to  the  supreme  execu¬ 
tive  of  this  commonwealth. 

Resolved,  That  the  legislature  of  this  commonwealth  have  a 
high  sense  of  the  wisdom  and  patriotism  of  the  legislature  of 
the  state  of  Vermont,  and  accord  with  them  in  the  opinion,  that 
it  is  expedient  that  the  constitution  of  the  United  States  be 
amended  in  the  manner  contemplated  in  the  aforesaid  resolves 
of  the  legislature  of  the  state  of  Vermont. 

Resolved,  further  that  the  senators  and  representatives  of  this 
state  in  the  congress  of  the  United  States  be,  and  they  are  hereby 
requested  to  adept  the  necessary  measures  to  effect  the  amend¬ 
ment  aforesaid. 

Resolved,  further  that  his  honor  the  lieutenant  governor,  be, 
and  he  is  hereby  requested  to  communicate  the  foregoing  resolves 
to  the  supreme  executive  of  the  state  of  Vermont,  and  also  to 
transmit  copies  thereof  to  the  senators  and  representatives  of 
this  commonwealth  in  the  congress  of  the  United  states. 

[Approved,  March  4th,  1800.] 

The  propriety  of  this  house  chusing  its  president  he 
considered  as  perfectly  conformable  to  the  principles  of 
the  constitution.  The  house  of  representatives  never 
votes  by  states  but  when  the  election  of  president  devolves 
upon  them  ;  the  senate  never  ;  but  he  did  not  see  why  it 
should  not  be  so  in  the  event  of  a  non  election  of  vice  pre¬ 
sident  by  the  want  of  a  majority.  As  to  the  number  from 
which  the  choice  was  to  be  made,  he  cared  not  whether 
it  were  3  or  5 — he  considered  the  principle  of  designa¬ 
tion  as  every  thing ;  and  the  number  but  as  trimmings  to 
the  cloth.  He  would  recommend  it  to  the  gentleman 
from  Vermont  so  to  alter  his  amendment  as  to  render  an 
election  in  the  house  the  resort,  in  the  defect  of  a  majority , 
he  was  for  the  choice  being  made  not  in  the  numerical 
capacity  of  the  members,  but  by  states- 

Mr.  Bradley  considered  the  provision  of  voting  in 
the  house  of  representatives  by  states,  as  a  good  one  in 
the  particular  case.  But  he  did  not  think  it  necessary 
here,  because  this  house  already  represents  states  equal¬ 
ly  ;  a  member  or  members,  may,  it  is  true,  be  absent, 
but  then  that  is  a  great  neglect  of  duty,  and  subjects  to 
heavy  responsibility  the  absent  member.  Under  the 
present  order  of  things  a  state  may  have  no  vote,  tho’ 
both  its  representatives  are  present,  for  A.  and  B.  may 


(  27  ) 


vote  differently;  if  five  or  six  states  were  in  the  same 
predicament,  a  case  not  very  unreasonable  to  suppose, 
then  there  would  not  be  a  majority  ; 

The  question  was  then  put  and  Mr.  Bradley’s  motion 
carried.  * 

Mr.  Bradley  then  moved  his  amendmentm  the  16th 
line  as  above  cited,  to  be  inserted  in  the  place  of  the 
words — “  in  the  manner  directed  by  the  constitution” — . 
He  observed  this  amendment  would  render  it  necessary 
in  order  to  avoid  confusion  to  repeal  the  section  which 
comes  within  its  purview  ;  if  no  manner  of  election  is 
pointed  out,  it  will  be  impossible  to  tell  what  construction 
to  put  upon  it  ;  and  instruments  of  this  important  nature 
cannot  be  expressed  in  language  too  explicit.  If  a  pro¬ 
vision  such  as  is  offered  should  not  be  adopted  might 
not  the  house  of  representatives  consider  themselves  at 
liberty  to  chuse  by  the  numerical  vote  ?  It  is  true  that  any 
vote  we  may  here  give  will  not  alter  the  principle,  but 
it  is  proper  that  provision  be  now  made  that  no  mistaken 
interpretation  take  place  at  a  future  time. 

Mr.  Adams — if  he  understood  the  state  of  the  ques¬ 
tion,  the  principle  relates  in  the  most  important  degree 
to  the  numbers,  from  which  the  choice  should  be  made 
— as  it  now  stood  he  could  not  say  whether  three  or  five 
was  the  number  to  be  chosen  from;  he  hoped  the  senate 
would  determine  whether  the  choice  was  to  be  made 
from  the  highest  numbers  in  all  cases ;  or  to  make  pro¬ 
vision  specially  for  either  case  of  5  or  3  ;  if  the  choice 
was  to  be  fixed  by  the  number  5,  then  he '  conceived 
that  the  words  from  the  whole  number  if  less  than  five, 
should  be  introduced.  He  was  himself  in  favor  of  the 
number  5,  because  by  taking  3  you  reduce  the  power 
of  the  small  states,  and  their  chances  in  the  House  of 
Representatives  ;  for  certainly  it  is  a  much  higher  pow¬ 
er  to  elect  from  5  than  from  3.  He  questioned  whether 
the  House  of  Representatives  would  part  with  that  num¬ 
ber,  for  in  general  popular  bodies  are  very  tenacious  of 
power,  it  is  in  their  nature,  and  so  in  a  degree  are  Se¬ 
nates. 

Mr.  Dayton  said  the  remarks  of the  gentleman  (Mr. 
Adams)  in  favor  of  small  states  were  too  precious  to  be 
lost;  but  he  wished  they  had  been  reserved  for  the  pro¬ 
per  place  ;  with  regard  to  number  likewise,  it  was  out  of 
place,  as  there  was  no  reference  to  numbers  in  the 
motion  of  the  gentleman  from  Vermont. 


\ 


(  28  ) 

The  second  amendment  of  Mr.  Bradley  was  then  put 
and  carried. 

Mr.  Cocke  called  for  a  consideration  of  the  vote  of  the 
preceding  day  on  the  number  in  the  15th  line  which 
he  moved  to  strike  out,  in  order  to  afford  gentlemen  the 
opportunity  they  seemed  to  wish  for  to  discuss  the  number. 

The  motion  was  carried,  and  a  blank  left  for  the  num¬ 
ber. 

NOVEMBER  24.  , 

Mr.  Cocke — -gentlemen  had  now  full  latitude  for 
discussion  and  he  wished  it  would  be  settled  so  far  as 
concerned  the  number  this  day  ;  he  could  not  but 
express  his  sorrow,  however,  to  hear  gentlemen  making 
such  a  stir  about  supposed  dangers  to  the  small  states  ; 
— this  kind  of  clamour  is  worn  thread  bare,  and  could 
not  pass  muster  much  longer  ;  on  ail  occassions  we 
hear  in  one  shape  or  another  this  opposition  of  states 
brought  forward — lately  it  was  the  west  was  in  danger, 
at  other  times  the  south  is  arrayed  againt  the  east  ;  and 
now  we  are  called  upon  to  believe  the  large  are  going 
to  swallow  the  small  states  ;  gentlemen  must  have  a 
large  swallow  indeed  who  can  take  in  these  things  ; 
another  gentleman  from  Connecticut  (Mr  Hiiihouse) 
presents  us  another  horrid  spectacle,  he  tells  us  that  those 
states  must  be  merged  in  blood,  and  truly  the  remedy 
by  which  all  this  blood-shed  is  to  be  prevented,  he  tells 
us  is  the  election  of  a  federal  vice  president  !  He  was 
not  surprised  at  this  kind  of  remedy  being  recommended 
but  he  thought  it  little  better  than  a  quack  medicine— 
He  believed  that  if  the  remedy  was  accepted,  the  day 
would  not  be  far  distant  when  they  would  come  forward 
with  another,  and  tell  us  that  a  federal  president  was  ne¬ 
cessary  to  our  existence.  He  for  one  was  not  for  taking 
the  remedies  of  those  who  when  disorder  prevailed  in¬ 
stead  of  curing  them  created  new, ones.  Gentlemen 
would  not  a  lew  years  ago  listen  to  any  advice  or  even 
complaints  of  a  minority  ;  they  think  now  as  they  said 
then  that  there  was  no  talents  or  virtue  in  the  country  but 
what  they  possess  ;  and  they  now  tell  us  that  minorities 
should  govern.  While  he  stood  in  that  house  he  would 
never  submit  to  be  governed  by  a  minority,  especially  a 
minority,  which  when  apart  of  the  majority,  declared  the 
then  minority  deserved  a  dungeon.  We  shall  not  treat 
them  in  that  way,  they  shall  experience  no  persecution 
we  will  even  endeavour  tp  make  their  situation  comforta- 


(  29  ) 


b!e  for  them,  but  they  must  not  expect  our  aid  to  set 
aside  majorities  or  to  depart  from  the  principles  of  the 
constitution. 

Mr.  Hillhouse — If  the  gentleman  alludes  to  me, 
he  is  mistaken — 

Mr.  Cocke — No  gentleman  in  this  house  can  be  a 
stranger  to  my  meaning — he  had  proposed  to  insert  the 
number  5  in  the  blank — • 

Mr.  Dayton. seconded  the  motion,  but  not  for  the 
reasons  offered  by  the  gentleman  from  Tennessee. 

Mr.  -Cocke — As  I  cannot  pocket  that  gentleman’s 
superior  reason,  I  must  be  content  to  make  use  of  that 
plain  reason  God  has  given  me.  He  had  heard  it  said 
an  that  floor,  that  the  object  of  our  amendment  was  to 
prevent  a  federal  vice  president  being  elected.  For  his 
personal  feeling  on  that  subject  he  could  account  :  he 
entered  into  no  examination  of  other  gentlemen’s  feel- 
ings,  but  for  himself  he  would  avow  that  he  was  actuat¬ 
ed  by  a  strenuous  wish  to  prevent  a  federal  vice  presi¬ 
dent  being  elected  to  that  chair  ;  he  could  not  subdue 
lis  memory,  and  he  would  not  wish  to  see  any  man 
;hosen  whose  attachment  to  republican  government  he 
doubted  ;  he  was  against  the  election  of  any  man  who 
differed  from  the  majority  ;  he  was  as  adverse  to  persecu- 
ion  as  any  man,  he  could  not  persecute,  but  he  would 
vhile  he  had  breath,  guard  against  all  men  and  all  par¬ 
ies  that  countenance  or  practised  persecution  for  opi¬ 
nions  sake.  He  would  assert  the  right  of  the  majority, 
nd  entertained  no  sort  of  apprehensions  from  those 
-pectres  and  hobgoblins,  those  denunciations  of  blood 
mdsuch  declamations  as  were  thrown  out  by  some  gen- 
iemen,  and  which  betrays  the  rancour  which  rankles  in 
ome  gentlemen’s  breasts,  who  judge  of  others  by  them- 
•elves,  and  furnish  the  strongest  argument  against  trust- 
ng  to  them.  He  disdained  persecution,  but  he  would 
;uard  against  it.  He  would  follow  the  letter  and  the 
pirit  of  the  constitution  which  excluded  the  choice  of 
Priorities  ;  which  was  advantageous  to  the  minority 
f  it  was  not  their  own  fault.  We  are  called  upon  to 
nake  a  choice  or  we  are  not.  Will  gentlemen  tell  us 
hat  we  make  a  choice,  if  we  admit  what  is  contrary  to 
'Ui  sentiments  of  right  and  wrong.  What  is  the  object 
»f  the  amendment  r  To  put  it  in  the  power  of  the  peo- 
>le  to  choose  those  whom  they  think  most  entitled  to 
onfidence  and  respect.  If  we  furnish  an  amendment 
vhich  they  do  not  approve,  they  will  send  it  back  to  us. 


C  30  ) 


Mr.  Taylor  this  appears  to  be  a  subject  of  so  much 
importance— -and  the  matter  introduced  into  the  debate 
had  given  it  a  more  serious  air  than  it  at  first  assumed. 
To  estimate  a  measure  of  a  public  kind  we  must  look  to 
the  consequences  which  it  is  intended  or  may  inciden¬ 
tally  prcduce.  If  the  measure  had  the  tendencies  or 
would  produce  such  effects  as  some  gentlemen  surmise, 
it  would  be  very  serious  indeed.  But  he  would  be  bold 
to  say  that  it  was  never  contemplated  to  countenance  or 
encourage  a  classification  of  states.  No  man  he  believed 
who  advocated  the  amendment  would  submit  to  a  classi¬ 
fication  of  states  any  more  than  a  classification  of  men, 
or  the  establishment  of  patrician  and  plebeian  orders. 
Are  gentlemen  who  hold  forth  these  delusions  conscious 
that  the  course  they  pursue  is  the  only  mode  to  excite 
that  jealousy  and  distraction  which  they  say  they  depre¬ 
cate  ?  Do  gentlemen  wish  to  excite  an  hostility  of  this 
kind,  to  inculcate  the  idea  of  discriminating  the  states 
into  patrician  and  plebeian  ?  Are  they  regardless  of  the 
consequences  or  have  they  ever  considered  them  ? 

How  he  would  ask  is  this  amendment  to  favor  the  large 
at  the  expence  of  the  small  states  ?  Gentlemen  have  not 
shewn.  Have  they  considered  that  nothing  is  so  fatal  to 
freedom  as  the  existence  of  orders  and  distinctions  in 
society  ?  Could  the  effect  be  less  pernicious  if  you  at¬ 
tempt  with  any  effect  to  stir  up  rivalry  of  states  ?  Are 
you  prepared  to  estimate  the  consequences  of  violence 
and  the  conflict  of  weakness  against  strength  ?  Can  any 
gentleman  reflect  on  it  without  horror !  Is  it  to  be  pre¬ 
sumed  that  if  you  set  the  furious  passions  in  agitation 
that  the  large  states  will  sit  patiently  and  bear  unmerited 
reproach  and  outrage  ?  Do  you  not  perceive  that  these 
menaces  and  clamours  proceed  exclusively  from  those 
who  affect  so  much  concern  foe  the  small  states?  Are 
gentlemen  aware  of  the  responsibility  which  they  attach 
to  themselves— that  of  exciting  resentment  and  animosi¬ 
ty,  and  that  kind  of  animosity,  which  a  weak  man  injured 
always  feels  towards  the  stror , ' :  for  it  is  of  no  conse¬ 
quence  whether  the  weak  man  is  deceived,  and  insulted 
bv  the  imposition  put  upon  him,  if  he  is  really  deceived 
into  the  pernicious  belief. 

He  had  persuaded  himself  a  mode  of  argument  so  per¬ 
nicious  could  not  be  employed  on  this  occasion ;  he  had 
expected  that  the  question  would  be  examined  and  de¬ 
cided  upon  its  true  grounds.  But  beside  this  we  find  an 


(  31  ) 


attempt  to  defeat  the  amendment  by  its  form.  Let  us 
examine  this  amendment.  By  filling*  up  the  blank  with 
5  you  carry  the  election  into  the  house  of  representatives, 
and  why  do  we  wish  to  keep  the  election  out  of  the  house 
of  representatives  ?  Because  experience  teaches  us  to 
avoid  the  danger  of  diets,  which  are  always  exposed  to 
intrigue  and  corruption,  as  we  avoid  elections  by  mobs 
from  their  liability  to  be  misled  by  the  sudden  impulse 
of  passion  and  violence.  We  wish  to  avoid  both,  because 
each  by  different  paths  leads  to  the  same  consequence. 
One  or  two  elections  by  a  diet,  would  repay  the  small 
states— .with  what  ? — with  monarchy.  Elections  by  diets 
always  lead  to  monarchy.  It  is  for  this  reason  then  that 
we  wish  to  keep  the  elections  where  they  should  be  in  the 
hands  of  the  people,  where  from  very  obvious  cause  nei¬ 
ther  intrigue  nor  corruption  can  operate.  It  is  by  diets 
that  Great  Britain  has  been  ruined  in  her  prosperity  and 
liberties.  By  placing  the  election  in  the  house  of  repre¬ 
sentatives  you  expose  the  small  states  to  the  evils  which 
Great  Britain  has  suffered  thro’  her  rotten  boroughs.  The 
small  number  of  representatives  in  the  small  states  will 
expose  them  to  the  alurements,  against  which  humanity 
is  not  always  fortified.  The  danger  of  temptation  must 
be  guarded  against ;  else  the  minority  may  be  thro’  cor¬ 
ruption  made  to  govern — -the  small  boroughs  where  there 
are  few  electors  have  given  the  rule  over  the  majority  in 
England  for  more  than  a  century  ;  corruption  has  been 
the  prime  minister,  and  the  parliament  has  been  in  fact 
the  mere  registers  of  the  monarchical  edicts. 

But  it  will  be  asked  do  we  lessen  the  chance  by  lessen¬ 
ing  the  number.  Yes,  sir:  the  greater  the  scope  is 
which  you  give  the  house  of  representatives,  your  chance  is 
the  greater  for  a  number  of  candidates— -if  you  fill  the  blank 
with  20  you  will  have  20  ;  if  with  5  you  will  have  5  with¬ 
in  the  scope  of  that  power  and  the  greater  numbers  the 
electors  may  have  to  nominate  the  greater  division  of 
sentiment,  and  more  numerous  will  be  the  inducements 
to  corruption. 

Limit  the  number  to  3  and  you  reduce  the  danger,  and 
by  condensing  public  sentiment,  you  will  then  have  the 
watchfulness  of  ambition  on  one  side  and  of  virtue  on  the 
other  directed  without  distraction  to  the  limited  number 
— he  would  therefore  prefer  3  to  five. 

Mr.  Dayton  believed  it  would  come  to  this,  that 
when  the  question  came  to  be  discussed  and  the  rights 


(  32  ) 


of  the  small  states  maintained,  the  large  states  would 
threaten  us  with  their  power.  The  same  threats  had 
been  heard  in  the  old  congress,  but  they  were  laughed 
at,  for  the  votes  of  the  states  were  equal ;  they  were 
heard  in  the  convention,  but  they  were  spurned  at,  for 
the  votes  were  equal  there  also ;  the  large  states  must 
be  cautious  here,  for  in  this  body,  for  here  too,  the  votes 
are  equal.  The  gentleman  had  talked  of  a  classifica¬ 
tion  of  states  as  a  novelty,  but  he  would  ask  if  that  gen¬ 
tleman  pretended  to  be  wiser  than  the  constitution  ?-— 
Look  through  that  instrument  from  beginning  to  end, 
and  you  wiil  not  find  an  article  which  is  not  founded  on 
the  presumption  of  a  clashing  of  interests.  Was  this 
fine  process  instituted  for  nothing  ?  Was  developing 
the  election  in  particular  circumstances  in  the  house  of 
representatives  intended  for  nothing?  Was  nothing 
meant  by  the  provision  of  the  constitution,  that  no 
amendment  should  ever  deprive  the  states  of  the  equa¬ 
lity  of  votes  in  this  house  ?  Yet,  it  was  that  jealous 
caution  which  foresaw  the  necessity  of  guarding  against 
the  encroachments  of  large  states.  The  states,  what¬ 
ever  was  their  relative  magnitude,  were  equal  under  the 
old  confederation,  and  the  small  states  gave  up  a  part 
of  their  rights  as  a  compromise,  for  a  better  form  of  go*- 
vernment  and  security  ;  but  they  cautiously  preserved 
their  equal  rights  in  the  senate  and  in  the  choice  of  a 
chief  magistrate.  The  same  voice  that  now  addresses 
you  made  the  solemn  claim,  and  declared  there  was  no 
safety  in  association  unless  the  small  states  were-  pro¬ 
tected  here.  The  warning  was  taken,  and  you  find  in 
that  part  as  in  all  others,  a  classification  governs  every 
line  of  the  constitution. 

Gen.  Jackson  said  that  though  coming  from  a  small 
state  he  had  not  been  instructed,  and  was  therefore  at 
perfect  liberty  to  act  according  to  the  best  of  his  judg¬ 
ment  ;  though  his  state  was  now,  in  regard  to  popula¬ 
tion,  small,  and  though  it  were  to  remain  so,  he  could 
have  but  one  opinion  on  this  subject.  He  saw  abun¬ 
dance  of  reason  for  prefering  three  to  five.  The  con¬ 
stitution  under  the  present  form  has  directed  the  choice 
to  be  made  from  five.  But  the  reason  of  this  was  con¬ 
sistent  with  the  result  to  be  produced ;  the  electors  were 
to  vote  for  two  persons  indiscriminately,  but  with  the 
restriction  of  voting  for  one  only  belonging  to  the  state 
where  the  vote  was  given.  The  voting  for  two  would 


(  33  ) 


necessarily  bring  forward  four  candidates,  and  a  fifth 
possibly,  for  we  saw  in  the  two  elections  before  the  last 
that  there  was  one  more  than  the  four,  though  in  each 
case  the  fifth  had  but  one  vote ;  he  alluded  to  the  vote 
for  Mr.  Jay.  In  the  amendment  proposed  you  are  call¬ 
ed  upon  to  designate  for  each  office,  and  there  can  be 
little  apprehension  of  having  more  than  two  or  three 
principal  candidates ;  and  for  twenty  years  to  come  he 
had  no  apprehension  of  a  greater  number  of  candidates 
if  this  amendment  prevails. 

Now  supposing  that  as  on  the  first  and  second  elec¬ 
tions,  there  were  to  be  five  candidates,  and  that  there 
should  be  a  candidate  with  one  vote  like  Mr.  Jay,  and 
that  the  number  were  five ;  that  there  was  an  equal 
number  of  votes  for  two  candidates  as  at  the  last  election, 
two  others  with  inferior  numbers,  and  the  fifth  only  with 
one  vote,  the  election  would  devolve  upon  the  house  of 
representatives,  and  thus  would  have  them  place  him 
who  had  only  one  vote  on  the  same  footing  with  him 
who  had  seventy  three. 

Suppose  the  result  to  be  the  same  as  the  last  election 
when  the  votes  were  for  Thomas  Jefferson  73,  Aaron 
Burr  73,  John  Adams  65,  C.  C.  Pinckney  64,  J.  Jay  1 — 
here  the  unequal  numbers  would  be  placed  under  the 
power  of  the  house  upon  equal  terms. 

What  would  you  do,  sir,  if,  there  was  not  barely  five 
who  had  not  the  highest  nembers — .your  difficulties 
would  encrease  with  your  numbers.  He  had  no  appre¬ 
hensions  on  the  score  of  the  present  election,  every 
member  of  that  house  must  be  satisfied  that  there  can  be 
no  doubt  of  his  being  the  man  of  the  people  above  all 
competition — he  believed  too  he  was  the  man  of  the  legis¬ 
lature  ;  all  considerations  as  to  the  next  election  could 
have  no  influence  here  ;  we  must  look  to  the  future 
when  we  may  not  be  so  fortunate.  Pie  was  sorry  to 
hear  gentlemen  talk  of  separate  interests,  he  knew  of 
no  separate  interests,  but  felt  himself  bound  to  maintain 
the  interests  of  the  great  whole.  This  he  thought  could 
not  be  done  but  by  the  choice  from  the  number  three. — 
You  had  best  avoid  the  danger  which  experience  has 
shewn  you  narrowly  escaped.  You  must  keep  the  elec¬ 
tion  out  of  the  house  of  representatives  if  you  wish  to 
keep  the  government  from  civil  war,  from  the  danger 
of  having  a  man  not  voted  for  by  the  people  proposed  to 
be  placed  over  your  head,  as  you  are  plainly  told  had  been 

E 


(  34  ) 


proposed.  We  are  but  the  servants  of  the  people  and 
is  our  duty  to  study  their  wishes.  Separate  interests  do 
not  exist — and  the  agitation  of  such  ideas  should  not  be 
countenanced.  It  is  all  a  cant,  a  mere  factious  pretence 
—he  had  never  known  any  separate  or  hostile  interests 
in  this  country  but  that  of  whig  and  tory  ;  tho*  he  had 
heard  much  less  said  about  these  real  enemies  than  the 
imaginary  adverse  interests  so  much  talked  of  as  the 
eastern  and  southern  states — then  the  eastern  and  the 
western — then  come  the  federalists  and  anti-federalists — > 
subsequently  federalism  and  republicanism — and  now  it 
is  the  large  and  small  states.  Presently  he  should  not 
be  surprised  to  hear  of  the  hostility  of  the  rats  and  anti- 
trats  j  the  danger  from  one  is  as  real  as  from  the  other 
—He  hoped  to  see  all  this  delusion  banished  ;  he  was 
well  satisfied  it  would  not  make  any  impression  on  the 
people.*  By  fixing  on  the  number  3,  division  and  pas¬ 
sion  will  be  more  effectually  prevented,  and  intrigue 
will  have  less  room  for  operation. 

Mr.  Wright — we  need  not  be  told  in  this  house, 
that  the  constitution  was  the  result  of  a  compromise,  or 
that  care  was  taken  to  guard  the  rights  of  each  state  ; 
these  things  we  must  be  very  ignorant  indeed  not  to 
know.  But  does  it  therefore  follow  that  it  is  not  sus¬ 
ceptible  of  amendment  or  correction  under  experience  ? 
Does  it  follow  because  for  mutual  interest  and  security 
this  compromise  was  made,  that  we  are  precluded  from 
effecting  any  greater  good  ?  No  man  would  accuse  him 
of  a  wish  to  see  the  interest  of  any  state  impaired. — 
But  we  can  preserve  the  spirit  and  intention  of  the  con¬ 
stitution  in  full  vigour  without  impairing  any  interests. 
x\nd  this  is  to  be  done  by  the  discriminating  principle, 
it  fulfils  the  intention  and  it  forefends  the  recurrence  of 
that  danger  from  which  you  have  once  escaped.  By 
this  principle  each  elector  may  name  his  man  for  each 
office,  and  this  can  be  done  whether  the  number  be  3 
or  5.  For  the  latter  number  he  was  disposed  because 
already  adopted  by  the  other  house,  and  he  did  not  wish 
to  delay  its  progress.  If  he  were  to  form  a  constitu¬ 
tion,  he  would  provide  that  there  should  be  only  two 
candidates  presented  to  the  house.  But  he  did  not  re¬ 
ly  on  any  number  so  much  as  on  the  discriminating 
principle. 

Mr.  Nicholas — several  gentlemen  profess  much  re¬ 
luctance  to  make  any  change  in  the  constitution,  he  would 


(  35  ) 


make  no  such  profession ;  and  though  he  should  be  as 
jealous  of  improper  alterations  or  the  introduction  of  prin¬ 
ciples  incompatible -with  republican  government,  he  would 
not  hesitate  to  make  any  alteration  calculated  to  promote 
to  secure  the  public  liberty  upon  a  firmer  basis,  nay  if  it 
could  be  made  better  he  would  expunge  the  whole  hook. 
Gentlemen  who  are  for  adhering  so  closely  to  the  con¬ 
stitution  appear  not  to  consider  that  a  choice  of  president 
from  the  number  3  is  more  in  the  spirit  of  the  constitu¬ 
tion  than  from  5 ;  and  preserves  the  relation  that  the 
election  of  two  persons  under  the  present  form  holds  to 
the  number  5 — a  reason  ecpially  forcible  with  him  was, 
that  by  taking  the  number  3  instead  of  5,  you  place  the 
choice  with  more  certainty  in  the  people  at  large,  and 
render  the  choice  more  consonant  to  their  wishes. — 
With  him  also  it  was  a  most  powerful  reason  for  pre- 
fering  3  that  it  would  render  the  chief  magistrate  depen¬ 
dent  only  on  the  people  at  large,  and  independent 
of  any  party  or  any  state  interest.  The  people  hold 
the  'sovereign  power,  and  it  was  intended  by  the  consti¬ 
tution  that  they  should  have  the  election  of  the  chief 
magistrate.  It  was  never  contemplated  as  a  case  like 
to  occur  but  in  an  extreme  case,  that  the  election  should 
go  to  the  house  of  representatives.  What  he  asked  would 
have  been  the  effect  had  Mr.  Jay  been  elected  when  he 
had  only  one  vote  ?  What  he  would  ask  would  be  the 
impression  made  upon  our  own  people,  and  upon  for¬ 
eign  nations,  had  Mr.  Aaron  Burr  been  chosen  at  the  last 
election,  when  the  universal  sentiment  was  to  place  the 
present  chief  magistrate  in  that  station .  He  did  not  mean 
any  thing  disrespectful  or  invidious  towards  the  vice  pre¬ 
sident,  be  barely  stated  the  fact  so  well  known,  and  asked 
what  would  be  the  effect-— where  would  be  the  bond  of 
attachment  to  that  constitution  which  could  admit  of  an 
investiture  in  a  case  so  important,  in  known  opposition  to 
the  wishes  of  the  people  ?  The  effect  would  be  fatal  to 
the  constitution  itself ;  it  would  weaken  public  attachment 
to  it,  and  the  affectation  if  alone  for  the  small  states  would 
not  have  been  heard  of  in  the  deep  murmur  of  discontent. 
Gentlemen,  who  pretended  to  feel,  for  he  would  not  enter 
into  their  conceptions  if  they  had  any  real  apprehensions 
on  the  subject  of  the  danger  of  the  smaller  states,  forget 
that  this  is  not  a  project  of  the  large  states  ;  they  ought  to 
have  considered  that  it  has  originated  with  the  small 
states  ;  and  that  in  the  house  of  representatives  two  thirds 


(  36  ) 


of  the  representation  is  ‘hat  of  smaller  stales:  Have 
gentlemen  forgotten  that  the  amendment  has  been  twice 
recommended  from  South  Carolina,  aftenvards  by  Ver¬ 
mont,  then  by  N.  Hampshire,  and  finally  by  Tennessee? 
Are  these  large  or  small  states  ? — Away  with  such  ground¬ 
less  pretences! — The  attempt  to  excite  jealousy  in  the 
small  states  cannot  succeed.  The  people  know  that  it 
is  calculated  to  prevent  a  crisis  which  was  long  appre¬ 
hended  and  which  the  experience  of  the  last  election  prov¬ 
ed  to  be  well  founded. 

Mr.  S.  Maclay  said  he  believed  that  as  it  concerned 
one  more  than  another  state,  it  was  perfectly  immaterial 
whethef  the  number  5  or  3  were  chosen.  He  conceived 
that  it  involved  no  question  but  what  was  common  to  all 
the  states — and  he  wished  this  clannish  spirit  could  be 
laid  aside  on  occasions  of  this  important  nature,  and  that 
the  gereral  interest  of  the  whole  should  be  considered.  In 
this  point  of  view  the  present  amendment  cannot  affect 
the  political  rights  of  any  state  for  being  on  a  perfect 
equality,  in  the  choice  of  one  from  three  as  well  as  one 
from  five,  no  danger  of  rights  can  exist,  tho*  other  dan¬ 
gers  may  be  apprehended.  If  any  rights  can  be  at  all 
affected,  they  must  be  civil  rights.  But  here  he  found  it 
difficult  to  convey  with  the  clearness  he  could  wish  his 
ideas  on  the  application  of  the  amendment  to  civil  rights  ; 
he  would  therefore  endeavor  to  do  that  by  comparison 
which  was  not  so  easily  explained  by  itself.  He  would 
compare  the  states  of  the  union  in  their  collective  capa¬ 
city  to  individuals  in  society  ;  wealth  in  society  is  power, 
and  he  who  has  wealth  possessess  a  more  extensive  in¬ 
fluence  than  he  who  is  poor;  in  this  respect,  perhaps  it 
maybe  said  they  are  not  upon  a  perfect  equality,  because 
one  man  possesses  an  equal  direct  power,  with  the 
poor  man,  and  an  overplus  of  indirect  power,  which  the 
poor  man  does  not  possess.  But  the  same  men  in  their 
civil  capacity,  as  citizens,  are  upon  complete  terms  of 
equality,  possessing  equal  rights  and  power  as  in  the 
right  of  suffrage,  and  in  the  sight  of  the  law  they  are  equal 
units  in  the  mass  of  society. 

Extent  of  territory  occupied  by  a  numerous  popula¬ 
tion,  is  in  a  state  what  wealth  is  to  the  private  individu¬ 
al.  The  state  of  small  extent  or  of  comparatively  small 
population,  stands  in  the  same  relation  to  society  as  the 
poor  man.  Notwithstanding  this  disparity  of  political 
or  phy  sical  power,  the  rich  and  the  poor  man,  the  large 


/ 


(  37  ) 

and  the  small  state,  are  equally  interested  in  supporting 
their  actual  or  personal  rights.  But  they  may  be  con¬ 
sidered  as  equally  interested  in  supporting  those  person¬ 
al  rights  which  connect  themselves  with  the  security  of 

their  wealth,  in  which  they  have  but  unequal  interest _ _ 

The  wealthy  have  beside  their  civil  rights  their  property 
at  stake,  and  may  therefore  be  supposed  more  vigilant 
and  watchful  of  innovations  which  might  weaken  or 
destroy  that  security  by  which  they  hold  their  rights 
and  privileges.  If  this  reasoning  be  correct,  let  us  apply 
it  to  tne  case  under  consideration  ;  why  attempt  to  alarm 
and  raise  jealousies  in  the  small  states,  when  it  is  evi¬ 
dent  that  the  interest  of  the  larger  states  will  be  constant 
protection  to  the  smaller  states  ?  The  idea  might  be 
carried  farther,  and  it  might  be  shewn,  that  if  there  is 
any  thing  in  this  amendment  that  has  any  tendency  to 
alter  the  relative  power  and  influence  of  any  states  in  the 
anion,  the  danger  would  be  to  every  state  in  proportion  to 
its  extent  and  population. 

It  was  probable  that  on  this  subject  he  entertained 
opinions  different  from  gentlemen  whose  talents  and  in¬ 
formation  he  highly  respected,  on  such  occasions  he 
always  offered  his  sentiments  with  diffidence  ;  but  he 
'•vas  willing  to  hear  and  be  convinced  if  mistaken  ;  but 
from  every  view  he  had  taken  of  the  cimendement  it  did 
iot  appear  to  him,  that  it  could  alter  the  principle  in  the 
constitution,  nor  change  in  any  way  the  relative  rights 
and  situation  of  the  states  ;  in  simple  truth  it  is  onlv 
alteration  in  the  detail  of  the  elective  process,  calculated 
o  assimilate  the  election  of  president  and  vice  president 
)f  the  United  States  to  the  modes  already  in  practice  in 
he  election  of  the  executive  of  several  of  the  states.  lie 
:ould  not  see  that  it  would  be  attended  with  any  danger 
o  any  olthe  states,  if  there  was  danger  the  danger  would 
,e  gre-ter  to  the  larger  states,  as  their  interest  is  the 
greatest.  But  danger  of  this  kind  cannot  and  dees  not 
:xist  ;  for  it  cannot  be  shewn  that  this  amendment  has 
*  .can  produce  any  effect  on  the  law  making  power  in 
his  country,  and  it  is  in  this  power  that  we  are  to  seek 
or  the  nature  and  the  protection  of  all  cur  rights,  civil 
nd  political  ;  and  with  this  impression  he  would  vote 
or  the  amendment  with  the  number  three. 

An  adjournment  was  called  for  and  carried. 

NOVEMBER  25,  1803. 

T  he  amendments  adopted  in  thjs  dav’s  debate  were  as 
allows : 


(  38  ) 


On  motion, 

It  was  agreed  to  amend  the  amendment,  adopted  yes¬ 
terday,  and  strike  out  the  words  in  the  manner  directed 
bij  the  constitution  f  and  insert — But  in  choosing  the  pre¬ 
sident  the  votes  shall  be  taken  by  states,  the  represen¬ 
tation  from  each  state  having  one  vote,  a  quorum  for  this 
purpose,  shall  consist  of  a  member  or  members  from  two 
thirds  of  the  states,  and  a  majority  of  all  the  states  shall 
be  necessary  to  a  choice/’ 

On  motion, 

It  was  agreed  to  amend  the  amendment  adopted  yes¬ 
terday,  and  to  strike  out  the  words,  “  and  in  case  of 
an  equal  number  of  votes  for  two  or  more  persons  for 
Vice  President ,  they  being  the  highest  on  the  list ,  the  se¬ 
nate  shall  choose  the  Vice  President  from  those  having  such 
equal  number ,  in  the  manner  directed  by  the  constitu¬ 
tion  ”  and  insert,  “  If  such  number  be  a  majority  of  the 
whole  number  of  ^electors  appointed ;  and  if  no  person 
have  a  majority,  then  from  the  two  highest  numbers  on 
the  list,  the  senate  shall  choose  the  vice  president :  a 
quorum  for  the  purpose,  shall  consist  of  two  thirds  of  the 
whole  number  of  senators,  and  a  majority  of  the  w  hole 
number  shall  be  necessary  to  a  choice.” 

On  motion,  by  one  of  the  majority 

It  was  agreed  to  consider  the  vote  of  yesterday  for 
inserting  the  word  three  in  line  10th  of  the  amendment 
ap- reed  to,  so  that  it  stand  blank*— -*and  altei  debate  the  sc» 
nate  adjourned. 

NOVEMBER  28. 

The  consideration  on  the  amendment  being  postpon¬ 
ed  on  Friday  25th— was  taken  up  this  day  for  a  short 
time,  when  the  following  desultory  conversation  took 

place.  .  . 

Mr.  Adams  suggested  the  propriety  oi  postponing 

the  question  this  day,  as  a  member  was  absent  indisposed 
(Mr.1  Anderson)  who  was  the  representative  of  a  small 
state.  He  was  ready  on  Saturday  to  give  his  .  vote  on 
the  main  question,  and  on  the  incidental  question  ;  but! 
as  he  understood  the  number  three  to  be  a  sine  qua  non 
with  the  gentleman  from  Virginia,  he  thought  it  better 
the  subject  should  be  postponed  until  the  house  should 

be  full.  . 

Mr.  Cocke  said  that  number  was  not  with  him  a 

sine  qua  non  ;  he  would  vote  for  the  amendment  with 
either  number;  tho’  from  a  more  deliberate  consideration 


% 


t  39 .  ■) 


of  the  arguments  he  had  heard  he  was  disposed  to  think 
three  the  best  number  as  it  promised  to  bring  the  election 
closer  to  the  people.  He  was  not  apprized  how  his  col¬ 
league  meant  to  vote. 

Mr.  Franklin  was  against  a  postponement ;  his  mind 
was  perfectly  made  up  on  the  subject,  and  it  was  time  the 
senate  should  come  to  a  decision  ;  the  legislature  of  his 
state  was  in  session,  their  sentiments  were  decidedly  in 
favor  of  the  amendment,  and  he  wished  it  to  reach  them 
before  Christmas,  as  they  would  most  likely  rise  about  that 
time. 

Mr.  White  said  he  as  well  as  other  gentlemen  was 
ready  to  vote  on  the  main  and  incidental  questions,  and 
was  fully  aware  of  the  importance  of  an  early  decision  ; 
his  mind  was  made  up  as  a  member  from  a  small  state 
for  the  number  5,  and  he  understood  the  member  absent 
was  in  favor  of  the  same  number;  he  wished  on  his  ac¬ 
count  therefore  to  postpone  though  ready  himself.  The  % 
gentleman  might  be  able  to  attend. to-morrow. 

Mr.  Nicholas  thought  there  wras  no  necessity  what¬ 
ever  to  delay  a  decision  ;  if  the  indisposition  of  a  mem¬ 
ber  was  a  good  reason  for  delay,  business  might  be  post¬ 
poned  fore’,  er  ;  but  even  if  the  gentleman  absent  was 
solicitous  to  deliver  his  sentiments,  the  filling  up  the 
blank  with  any  number  need  not  prevent  it  ;  as  the 
number  might  be  withdrawn  to  afford  him  that  op¬ 
portunity,  and  the  discussion  of  the  main  question  mieht 
still  proceed. 

Mr.  Dayton  was  opposed  to  that  mode  of  proceed¬ 
ing,  upon  the  issue  of  the  number  5  or  3,  it  w  as  probable 
-hat  the  whole  question  would  depend. 

Mr.  1  racy  was  for  a  postponement,  he  felt  himself 

inwell — a  pain  in  his  side. 

Mr.  Cocke  was  indifferent  whether  decided  now  or 
o-morrow,  it  would  be  all  the  same — postponed. 

Tuesday,  Nov.  29. 

The  order  of  the  day  being  called  up,  on  the  amend¬ 
ments  to  the  constitution— -a  considerable  time  elapsed, 

when  A 

Mr.  Dayton  rose  and  said,  that  since  no  other  gen- 
leman  thought  proper  to  address  the  chair,  altho’  laboring 
iimself  under  a  very  severe  cold,  which  rendered  speaking 
lainlul,  he  could  not  suffer  the  question  to  pass  without 
in  effort  to  arrest  it  in  its  progress  ;  and  should  consider 
us  last  breath  well  expended  in  endeavoring  to  prevent 


/ 


(  40  ) 

the  degradation  which  the  state  he  represented  would 
suffer  if  the  amendment  were  to  prevail. 

As  to  the  question  immediately  before  the  senate  for 
filiinp'  the  blank  withy? i>ey  he  felt  Himself  indebted  to  the 
member  from  Tennessee  for  renewing  the  subject— -he 
was  grateful  also  to  the  member  from  Maryland  (Mr. 
Wright)  for  declaring  he  would  support  it,  as  well  as  for 
giving  the  assurance  that  he  was  disposed  to  consider  and 
spare  the  interests  of  the  small  states  as  far  as  possible, 
consistently  with  the  great  object  of  discrimination. 

Every  member  who  had  spoken  on  this  subject,  seemed 
to  have  admitted,  by  the  very  course  and  pointing  of 
their  arguments,  even  though  they  may  nave  denied  it 
in  words,  ti  vis  was  really  a  question  between  great  and 
small  states,  and  disguise  it  as  they  would  the  question 
would  be  so  considered  out  of  doors.  The  privilege  given 
by  the  constitution,  extended  to  Jive,  out  of  which  tne 
choice  of  president  should  be  made,  and  why  should  the 
smaller  for  whose  benefit  and  security  that  number  was 
given,  now  wantonly  throw  it  away  without  an  equiva¬ 
lent.  As  to  the  vice  president,  his  election  had  no  in¬ 
fluence  upon  the  number,  because  the  choice  of  presi¬ 
dent  in  the  house  of  representatives,  was  as  free  and 
unqualified  as  if  that  subordinate  office  did  not  exist.— 
Nay,  he  said  he  would  venture  to  assert  that  even  if  th*?' 
number  five  were  continued,  and  the  vice  president  eii* 
tirely  abolished,  there  would  not  be  as  great  a  latitude 
of  choice  as  under  the  present  mode,  because  those  five 
cut  of  whom  the  choice  must  eventually  be  made,  were 
much  more  likley  hereafter  to  be  nominated  by  the  great 

states,  inasmuch  as  their  electors  would  no  longer  be  com¬ 
pelled  to  vote  for  a  man  of  a  different  state.  T he  honor¬ 
able  gentleman  from  Maryland  (gen.  Smith)  had  said,  he 
was  not  surprised  that  those  who  had  seats  in  the  old  con¬ 
gress  should  perplex  themselves  with  the  distinctions ;  but 
he  could  tell  that  gentleman,  that  it  was  not  in  the  oid  con¬ 
gress  he  had  learnt  them,  for  there  he  had  seen  all  the 
votes  of  the  states  equal,  and  had  known  the  compar¬ 
atively  little  state  of  Maryland  controlling  the  will  ol 
the  Ancient  Dominion— It  was  in  the  federal  convention 
that  distinction  was  made  and  acknowleged,  and  dened 
that  member  to  do,  what  had  been  before  requested  ot 
the  honorable  gentleman  from  Virginia,  viz.  to  open  die 
constitution,  and  point  our  a  single  article  if  he  could, 
that  had  not  evidently  been  framed  upon  a  presumption 


(  ) 


of  diversity  (he  had  almost  said,  adversity)  of  interest 
between  the  great  and  small  states. 

The  gentleman  from  Georgia  too  (Gen.  Jackson)  is 
very  much  afflicted  that  the  state  distinctions  had  been 
introduced  on  the  occasion,  and  admonished  the  senate  to 
put  away  all  local  considerations.  That  gentleman,  may 
now  be  prepared  to  do  so,  since  he  had  obtained  all  his 
heart  could  wish  for  his  immediate  constituents  ;  but  if 
there  was  a  single  member,  who  had  more  ably,  more 
perseveringly,  and  more  successfully  and  warmly  contend¬ 
ed  for  the  rights  and  interests  of  his  particular  state,  than 
any  or  ail  the  other  members  on  that  floor,  he  was  that 
member.  The  gentleman  had  not  only  been  quick,  but 
tremblingly  alive,  to  every  measure  that  could  in  the  most 
distant  degree  affect  the  interests  of  his  state.  It  would  be 
remembered  that  in  the  session  before  last,  when  a  bill  came 
up  from  the  other  house  for  allowing  the  privilege  of  frank¬ 
ing  a  few  letters  to  a  gentleman  who  sat  there  as  dele¬ 
gate,  and  had  travelled  about  1300  miles  from  the  bank* 
of  the  Mississippi  to  inform  us  that  it  was  inhabited  by 
other  creatures  than  alligators,  the  bill  was  opposed  by 
that  very  gentleman  upon  the  ground  that  the  dignity 
of  Georgia  would  be  wounded,  and  her  rights  injured 
by  the  passage  of  that  bill.  It  was  afterwards  commit¬ 
ted  and  recommitted,  whilst  the  unhappy  delegate 
(since  put  in  his  grave,  poor  man  no  doubt  of  a  broken 
heart)  was  compelled  to  wait  several  weeks  without 
writing  under  privilege  and  without  drawing  a  shilling 
of  money,  until  the  gentleman  from  Georgia  could  find 
leisure  to  secure  the  rights  and  dignity  of  his  state  from 
being  injured  by  allowing  the  delegate  to  frank  his 
billets. 

In  a  more  recent  and  far  more  important  transaction, 
it  might  be  recollected  also  how  dextrously,  how  zeal¬ 
ously,  and  how  very  successfully  he  had  advocated  the 
interests  of  a  little  corner  of  the  union  known  by  the  name 
of  Georgia — On  the  list  of  expenditures  there  would 
hereafter  be  seen  between  one  and  two  millions  account¬ 
ed  for  being  paid  over  to  the  treasury  of  the  state  he 

represents  as  the  fair  fruits  of  Ins  zeal  and  address _ 

lie  may  now  be  ready  since  he  has  obtained  thus  the 
extent  of  his  wishes,  to  banish  all  local  attachments 
pending  thi§  question  ;  he  would  give  him  credit  for  his 
assertion,  and  for  two  reasons,  Jirst,  because  the  gen¬ 
tleman  himself  had  said  so ;  and  next  because  he  should 

F 


w 


(  4*  ) 

on  any  other  principle  be  at  a  loss  to  account  for  the  vote 
he  was  about  to  give. 

Since  these  instances  of  state  attachment,  and  of  the 
good  fruits  of  it,  were  so  fresh  in  the  recollection  of  the 
senate,  it  was  to  be  hoped  the  gentleman  from  Georgia 
wouid  allow  members  from  other  states  sometimes  to 
imitate  his  commendable  example,  by  taking  a  little  care 
of  the  interests  of  their  constituents ;  not  in  the  more 
trivial  question  of  franking  letters  or  of  a  few  dirty  acres, 
but  in  a  question  so  very  serious  in  its  nature  as  to  strike 
at  their  sovereignty  itself. 

Some  attention  was  due  to  the  remarks  of  the  gentle¬ 
man  from  Pennsylvania  (Mr.  Maclay)  he  went  into  an 
ingenious  but  subtle,  distinction  between  civil  and  politi¬ 
cal  rights,  artfully  calculated  to  divert  the  attention  of  the 
senate  from  the  true  distinction  upon  which  this  motion 
and  the  main  question  turned,  by  amusing  them  with  an 
ingenious  disquisition  of  the  rights  of  men  in  society,  dis¬ 
tinguishing  them  under  the  heads  of  political  and  civil,  but 
without  following  him  thro*  his  regular  chain  of  reason¬ 
ing  he  would  make  shorter  work,  and  reduce  all  that  gentle¬ 
man  had  said  to  the  test  of  analysis.  T o  those  representa¬ 
tives  of  small  states  who  should  vote  with  him,  his  disquisi¬ 
tion  was  intended  doubtless  as  a  sort  of  justification  ;  and  to 
those  of  them  who  although  voting  against  him  must  be 
compelled  to  submit,  it  was  kindly  meant  as  a  consolation 
under  the  new  dispensation  of  state  influence— They 
were  told  that  their  rights  were  of  two  kinds,  viz.  fioli- 
tical ,  in  relation  to  their  standing  as  members  of  a  state, 
and  civil  in  reference  to  their  rights  as  mere  individu¬ 
als — that  their  political  rights  might  be  abolished  or 
abridged,  or  their  state  sovereignties  invaded  and  pros¬ 
trated,  but  their  civil  rights  might  remain  unimpaired 

- - that  they  might,  to  be  sure,  be  less  respected  as 

Jerseymen,  Rhode  Islanders,  or  Georgians,  but  they 
would  not  therefore  be  less  respected  and  regarded  as 
members  of  the  union,  or  Americans.  Mr.  Dayton 
said  he  liked  the  gentleman’s  illustration  of  his  argu¬ 
ment,  much  better  than  the  argument  itself,  and  he  had 
approved  the  machinery  be  had  employed,  much  more 
than  the  use  he  had  made  of  it  ;  with  his  leave  there¬ 
fore  he  would  take  the  materials  he  had  furnished  for 
the  occasion,  and  put  them  into  plain  and  simple  alle- 
gory. 

The  gentleman  from  Pennsylvania  had  compared  the 
great  and  small  states  confederated,  to  rich  and  poor 


(  43  ) 


men  associated  in  one  community.  Let  the  comparison 
for  argument’s  sake,  be  admitted  to  be  just  and  iet  the 
analogy  be  pursued.  Suppose  these  rich  men,  four  in 
number  ;  and  the  poor  men,  thirteen ,  had  entered  into 
a  compact  which  required  that  a  chief  should  be  chosen 
from  among  them,  once  in  four  years,  and  that,  as  their 
votes  were  to  be  in  proportion  to  their  wealth,  the  four 
men  would  have  a  preponderance  over  the  other 
thi  'tern.  Suppose  them  allowed  to  vote  for  them¬ 
selves  exclusively,  but  with  this  stipulation,  that  if 
on  the  first  ballot,  a  majority  should  be  found  for 
one,  it  should  devolve  upon  the  whole  seventeen  to 
decide  upon  the  chief,  with  equal  voices.  Would  it  not 
in  this  case,  be  the  interest  of  the  four  to  limit  this  choice 
to  the  three  highest  on  the  list,  and  of  the  thirteen  to 
extend  it  to  five  ?  In  the  first  case  of  three ,  they  would 
be  compelled  to  elect  one  of  the  3  rich,  however  unwor¬ 
thy  ;  and  in  the  other  case,  they  would  be  at  liberty  to 
choose  one  of  their  own  number,  if  they  thought  him 
better  qualified  than  any  of  the  other  four — They  might 
it  was  true  risk  the  displeasure  of  the  four  rich  men,  but 
why  debar  themselves  from  doing  it,  if  the  case  should 
justify  their  running  the  risk.  This  could  with  proprie¬ 
ty  be  said  to  be  such  a  case,  or  (to  drop  all  figure)  a  ques¬ 
tion  between  the  great  and  small  states.  The  constitu¬ 
tion  allowed  a  choice  from  the  five  highest  on  the  list, 
and  why  should  we  debar  ourselves  of  the  right  of  such  a 
choice  ;  it  was  a  privilege  which  ought  to  be  persisted  in 
even  though  the  resentment  of  the  great  states  might  be 
aroused,  as  expressed  in  the  animated  language  of  the 
honourable  gentleman  from  Virginia ;  their  power  was 
great,  and  he  could  hear  the  menace  of  a  former  day 
reverberating  through  the  senate  chamber ;  its  effects 
would  perhaps  be  best  ascertained  by  the  vote  which  was 
to  follow. 

Mr.  Wright  rose  only  to  correct  an  error  into  which 
the  gentleman  from  Jersey  had  fallen,  concerning  the 
number  5,  wnieh  he  had  spoken  in  favor  of  on  a  former 
day  ;  be  had  never  admitted  nor  argued  that  the  num- 
ber  five  or  three  would  affect  the  constitution  or  the  small 
states  ;  he  had  on  the  contrary  declared  that  all  he  want¬ 
ed  vv  ts  the  discriminating  principle and  so  that  was 
‘  fleeted,  he  cared  not  whether  the  choice  was  to  be  made 
from  5  or  from  20.  As  he  had  not  used  such  argu- 
ments,  lie  supposed  he  must  have  been  imposed  upon 


(  44  ) 


by  the  misrepresentations  of  his  sentiments  in  an  infa¬ 
mous  paper  called  the  "Washington  Federalist)  in  which 
nothing  said  on  his  side  oltne  house  was  reported  duly  j 
that  paper  had  ialsified  liis  speech,  and  he  took  that  op¬ 
portunity  to  state  that  whosever  was  the  reporter  of  his 
speech. in  that  paper,  was  guilty  of  a  lie. 

Mr.  Dayton  observed  that  the  allusion  he  had  made 
was  to  the  support  which  the  gentleman  certainly  gave 
to  the  number  5  ;  as  to  what  tne  paper  alluded  to  might 

sav  he  had  nothing  to  answer. 

Mr.  Wright — he  repeatedly  advocated  the  discrim¬ 
inating  principle,  and  he  had  been  represented  as  hold¬ 
ing  opinions  which  he  did  not  hold,  tnat  the  amenoment 
was  an  attack  on  the  small  states  ;  now  as  he  had  never 
entertained  that  opinion,  and  as  that  infamous  paper  had 
so  misrepresented  him,  he  must  repeat,  tnat  whoever 
wrote  that  charge  in  that,  paper  wrote  a  lie. 

Mr.  Dayton  hoped  the  gentleman  did  not  mean  to 
connect  him  in  his  observations  ;  he  could  not  certainly 
suspect  him  as  the  author  cl  any  piece  in  tnat  paper. 

Mr.  Cocke  had  also  come  in  tor  a  share  of  the  gen¬ 
tleman’s  thanks,  but  there  were  none  due,  as  he  had  acted 
as  one  o:  the  majority,  and  was  w  illing  by  gi\ing  them 
an  opportunity  to  say  all  they  had  to  say  in  favor  of  the 
number  5.  With  him  at  iirstit  wTas  a  matter  oi  indif¬ 
ference,  so  he  obtained  the  discriminating  principle, 
His  constituents  were  unanimous  in  favour  oi  this  prin¬ 
ciple,  and  he  had  tin  ir  instructions  to  that  effect.  He 
perierred  the  number  three  for  the  reasons  he  had  alrea¬ 
dy  given,  it  brought  the  election  closer  to  the  people,  5 
would  give  a  greater  latitude  and  subject  it  to  the  le¬ 
gislature,  which  he  did  not  wish  to  see  take  place.  As  to 
those  dreadful  consequences  and  all  this  depredation  of 
states — he  could  not  see  how  those  things  could  happen. 
What  if  the  large  states  were  foolish  enough  to  attempt 
the  enslavement  of  the  smaller  states,  were  the  small 
states  so  feeble  and  so  few  as  not  to  be  able  to  pre¬ 
vent  them.  As  to  this  degradation  of  small  states  he 
could  recollect  tne  time  wnen  it  was  sain,  tnat  if  Pennsyl¬ 
vania  wTould  give  an  unanimous  vote,  Jersey  would  gh  e 
a  vote  to  counteract  it.  He  knew  nothing  that  would 
degrade  a  state  so  much  as  intrigues  of  such  a  nature 
— and  it  was  to  avoid  that  degradation,  he  wished  for  the 
amendment.  He  wished  the  president  not  to  be  an  intrigu¬ 
er — lie  wished  to  have  him  what  he  now  is  tne  man  of 
the  people,  and  for  that  purpose  he  would  vote  lor  3. 


(  45  ) 


Gen.  Jackson  had  intended  to  have  given  only  a 
naked  vote  or  this  question,  but  the  profusion  of  compli¬ 
ments  heaped  upon  him  for  merely  discharging  his  duty, 
demanded  some  return  ;  he  had  been  sent  to  that  body  to 
watch  the  interests  of  his  state  and  to  do  to  the  best  cf  his 
judgment  justice  between  it  and  the  United  States.  He 
had  conceived  the  rights  of  Georgia  invaded,  and  he  felt 
it  to  be  his  duty  to  seek  justice  according  to  the  constitu¬ 
tion.  Whatever  gentlemen  may  insinuate  about  dirty 
acres,  no  state  of  the  union  was  so  much  oppressed  as 
Georgia  had  been  ;  not  by  the  large  states  from  which 
the  gentleman  apprehends  so  much,  but  by  the  small. 
Let  any  gentlemen  consult  the  convention  of  N.  York,  and 
they  will  find  that  not  a  single  small  state  came  forward 
to  support  her  protest  against  a  great  wrong,  when  a 
treaty  was  sanctioned  that  violated  her  rights  and  parcelled 
outlier  territory.  As  well  might  the  union  pretend  to 
give  up  Philadelphia  to  Great  Britain,  as  the  county  of 
Talassee  to  a  parcel  of  tomahawking  Indians  ;  had  that 
gentleman  been  a  representative  no  doubt  he  would  have 
come  down  upon  them  in  thunder,  he  would  have  with 
a  loud  voice  rent  the  hall  of  congress  with  the  wrongs  of 
the  state,  and  the  ravage  and  carnage  of  which  it  was 
exposed — he  would  have  described  the  children  torn  from 
their  mothers  arms  by  the  ufeeling  savage  and  dashed  to 
pieces — the  matron  abused  and  murdered  ;  and  deplored 
that  to  the  authors  cf  such  cruelties,  the  territory  had 
been  consigned. 

Gentlemen  either  know  not  or  cared  not  for  these 
wrongs  ;  and  after  several  years  supplication,  it  was  only 
two  years  ago  that  half  justice  was  done  ;  for  half  what 
was  taken  away  by  usurpation  has  not  been  restored  by 
justice.  We  had  paid  other  states  for  defending  the 
union,  but  Georgia  had  not  yet  been  paid  and  it  remains 
yet  to  be  known  whether  the  widow  bereaved  of  her  hus¬ 
band  in  battle  or  murdered  by  treachery  while  defending 
his  country,  or  the  orphan  who  survived  her  murdered 
parents,  are  to  be  remunerated  even  for  their  country 
and  equitable  demands.  Government  by  a  law  seized 
upon  this  territory  and  legislated  for  it.  It  was  for  that 
territory  a  delegate  was  sent,  to  whom  the  gentleman 
adverted.  He  opposed  the  extension  of  the  privilege  of 
franking  to  any  delegate,  because  agreeing  to  it  would  be 
to  acknowledge  the  title  of  injustice. 

No  state  had  ever  been  oppressed  by  Georgia — year 
after  year  they  had  sent  petitions  demanding  payment 


(  46  ) 


for  the  service  of  the  militia  which  had  protected  the 
frontiers,  but  they  have  net  been  paid  to  this  hour. 

Upon  the  merits  of  the  question  of  numbers  he  had 
wished  to  remain  silent,  but  as  he  was  up  he  would  in¬ 
trude  upon  the  house  a  few  observations.  He  preferred 
the  number  3,  for  several  serious  reasons  ;  he  wished 
to  prevent  the  choice  from  devolving  upon  the  house  of 
representatives  ;  he  wished  it  to  be  out  of  their  power 
if  it  should  devolve  upon  them  to  elect  any  man  not  evi¬ 
dently  intended  by  the  people,  the  smaller  number  would 
render  this  more  certain  ;  he  did  not  consider  it  a  mat¬ 
ter  of  any  consequence  from  what  state  a  president  was 
chosen  ;  he  believed  the  small  states  had  never  offered 
a  candidate  ;  the  period  was  too  short  since  the  exis¬ 
tence  of  the  government  to  admit  of  many  states  having 
an  opportunity  to  bring  forward  a  candidate  ;  and  various 
good  causes  had  contributed  to  make  the  selections  that 
had  been  from  large  states.  While  parties  existed  there 
would  be  a  champion  chosen  by  each,  if  Jersey  has  not 
brought  forward  one,  it  cannot  be  for  want  of  inclina¬ 
tion  ;  and  where  Princeton  college  exists  it  wrould  be 
ungracious  to  suppose  that  the  requisite  talents  couid  not 
be  found  there.  Georgia  had  never  wished  to  bring  for- 
wrard  a  candidate,  neither  had  Tennessee,  nor  several 
other  states.  He  believed  that  wherever  a  man  should 
be  found  in  the  union  distinguished  by  his  virtues,  his 
genius,  and  his  devotion  to  republican  principles,  that  he 
would  be  taken  up  without  concern  for  the  state  in  which 
he  has  his  residence. 

This  league  of  the  large  states  so  much  harped  upon,  he 
could  not  comprehend — where  was  it  to  be  formed  and 
how  ?  are  we  certain  that  Massachusetts  and  Virginia, 
Pennsylvania  and  New  York  will,  notwithstanding  their 
distance,  several  interests,  and  views,  combine  to  tie  the 
small  states  hands  and  feet  ?  No,  sir,  we  find  the  large  states 
disagreeing  and  as  jealous  of  each  other  as  the  small; 
and  with  more  reason  if  the  argument  has  any  weight 
at  all. 

He  preferred  the  number  three  in  the  amendment  as 
it  brought  the  election  two  degrees  nearer  to  the  people  i 
because  a  constitution  was  not  intended  for  the  conve¬ 
nience  of  the  servants,  but  for  the  use  of  the  sovereign— 
the  people.  Out  of  5  persons  the  provision  tor  a  choice 
was  before  directed  to  be  made  ;  the  constitution  as  now 
proposed  to  be  altered  would  approach  to  the  principle 
and  number  of  5  in  a  safer  and  more  certain  way,  for  the 
president  would  be  chosen  out  of  the  three  highest^and. 


(  47  ) 


the  vice  president  out  of  two  others.  It  was  not  proper 
that  any  man  should  have  a  chance  of  being  placed  in 
a  situation  of  so  much  consequence  contrary  to  the  inten¬ 
tions  oi  the  people.  It  is  therefore  our  duty  to  prevent 
such  an  occurrence  ;  and  we  ought  to  send  our  amend¬ 
ment  to  the  people  free  from  defects  as  possible,  because 
their  rights  are  involved  therein ;  neglect  their  rio  hts 
and  they  will  form  a  constitution  for  themselves ;  or  in 
seeking  to  reform  it  they  will  incur  the  dangers  either  of 
a  sanguinary  revolution  or  of  the  establishment  of  a  gov¬ 
ernment  like  that  of  Great  Britain,  sustained  by  corrup¬ 
tion  and  the  wretchedness  of  the  people. 

Mr.  Taylor  would  trespass  on  the  house  with  a  few 
observations.  With  some  other  gentlemen  he  was  not 
so  much  disposed  to  dispute  about  the  number  5  or  3,  as 
strenuous  to  obtain  the  principle  of  designation.  The 
arguments  of  those  who  opposed  the  amendment  he  per¬ 
ceived  had  been  all  along  founded  on  extreme  cases, 
which  even  if  they  were  to  happen  would  not  produce 
the  affirmed  effects  on  the  small  states.  The  number 
three  he  certainly  preferred,  because  it  gave  a  greater 
certainty  to  popular  choice  ;  the  extreme  case  of  this 
would  be  an  election  by  the  house  of  representatives  ;  if 
the  number  were  3  how  would  this  operate  in  the  house  ? 
\\  ould  not  the  small  states  have  a  greater  share  of  influ¬ 
ence  than  the  large  states,  in  the  proportion  of  1 3  to  4  ? 
Another  case  is  that  election  should  remain  in  the  divisi¬ 
ble  electoral  bodies,  as  heretofore,  or  in  the  extreme  be 
elected  by  an  accumulated  body  in  the  house  of  repre¬ 
sentatives.  Would  this  latter  be  in  favor  of  the  small 
states  ?  Would  the  election  by  a  diet  be  preferable  or 
safer  than  the  choice  by  electors  in  various  places  so 
remote  as  to  be  out  of  the  scope  of  each  others  influence, 

and  so  numerous  as  not  to  be  accessible  by  corruption, _ 

It  is  true  that  tiie  number  3  has  a  greater  tendency  to 
give  the  choice  to  the  people,  it  cannot  be  true  that  the 
small  states  would  wish  to  place  it  in  the  house  of  repre¬ 
sentatives,  because  3  would  give  tue  people  the  choice, 
and  even  if  they  did  wish  to  take  the  choice  out  of  the 
hands  of  the  people,  it  ought  to  be  opposed  because  it  is 
contrary  to  the  spirit  and  intent  of  the  constitution. 

.  division  ot  election  is  one  of  the  soundest  prin¬ 
ciples  ot  the  constitution ;  elections  are  more  free  and 
less  liable  to  passion  and  corruption  in  the  state  of  divisi¬ 
on  ;  for  experience  has  shewn  that  elections  any  more 


(  48  ) 

than  executive  powers  cannot  be  so  well  effected  by  ac¬ 
cumulative  bodies.  Your  constitution  directs  elections  in 
states,  not  assembled  at  one  place  ;  and  why  •  1  °  pre\ent 
the  evils  to  which  diets  or  legislative  bodies  are  exposed. 
Does  not  three  then  adhere  infinitely  more  to  the  leading 
principle  of  your  constitution,  by  placing  it  in  the  power 
of  the  numerous  election  districts,  and  keeping  cut  of  the 
reach  of  the  numerous  or  accumulated  body  tne  choice  ? 
Is  it  not  necessary  to  guard  by  every  means  against  w  uat 
has  proved  fatal  to  so  many  republics  ? 

Let  the  extreme  cases  on  the  other  hand  be  taken. 
The  number  5  is  adopted.  For  what  end?  io  carry 
the  election  to  the  house  of  representatives,  v  iii  tne 
small  states  be  benefitted  by  5  more  than  3  t  X\  ill  they 
not  from  the  number,  be  more  likely  to  be  divided,  and 
would  not  a  number  of  the  large  states  then  possess  all 
the  advantages  of  number  and  union — for  the  gentlemen 
consider  this  union  of  the  large  states  as  certain,  and  they 
cannot  refuse  their  own  arguments  or  tne  consequences  of 

them.  , 

Suppose  the  elective  power  of  the  people  annihilated, 

and  transferred  solely  to  the  legislature,  yvcuid  die 
small  states  consent  to  this  ?  Would  they  he  so  blind  ?  Yet 
by  adopting  5  you  promote  this  evil — oy  3  \  ou  pi  c\  ent  it, 
And  yet  gentlemen  say  they  look  upon  this  as  only  a  con¬ 
test  of  small  and  large  states. 

The  gentleman  from  Jersey  had  talked  something  of 
a  threat  alleged  to  have  been  thrown  out  in  that  house  by 
him  in  a  former  day’s  debate.  He  would  beg  leave  to 
say,  that  the  gentleman  had  most  egregious! v  misrepre¬ 
sented  or  misconstrued  him.  But  he  could  see  in  it  a 
very  shallow  stratagem  ;  he  thought  the  gentleman 
possessed  more  skill ;  had  his  generalship  been  as  gi«-2t 
as  his  reputation  he  would  not  have  planted  his  ambus¬ 
cade  where  the  enemy  must  see  him  from  all  siaes — and 
expose  all  his  force  by  this  state  of  his  advance  party. 
When  he  heard  this  clamour  about  the  danger  of  small 
states,  he  was  led  to  ask  what  was  their  number  ?  And 
looking  round  that  house  he  found  that  there  were 
thirteen  represented — and  only  four  large  states  1  Are 
the  representatives  of  the  small  states  in  this  senate 
then  so  blind  to  their  danger— that  possessed  of  a  full 
majority  of  nine  states,  they  will  deny  themselves  the 
power  of  self  government !  It  is  a  principle  of  heroism 
or  something  else  which  enables  minorities  to  govern 


/ 


,(  49  ) 


— but  it  is  a  principle  of  reason  and  virtue  which  gives 
the  government  to  majorities  in  a  free  government.- — 
Are  we  then  in  making  the  designating  principle,  to  ad¬ 
here  to  the  form  and  desert  the  substance  ?  How  does 
the  constitution  now  stand  ?  We  cfnise  from  5  the 
president  and  vice  president.  How  if  we  adopt  3.— 
Then  the  president  would  be  chosen  from  3  and  the 
vice  president  from  two  making  five.  Here  preserving 
the  substance  and  indirectly  the  form.  How  ifwe  adopt 
the  designating  principle  and  leave  the  number  five. 
Then  we  should  chuse  the  president  from  the  jive  and 
the  vice  president  from  two  other — making  7  l  The 
more  the  subiectis  examined  the  more  we  must  be  cofi- 
vinced  that  3  should  have  the  preference. 

Before  he  sat  down  he  would  sav  a  word  more  on  the 

¥  •  •  '  r  •  ,  V  •  V 

subject  of  the  threat  alledged  to  have  come  from  the 
ancient  dominion.  If  he  mistook  not  there  were  intima¬ 
tions  held  out  in  the  course  of  the  debate,  that  blood¬ 
shed  would  be  the  result  of  the  amendment  of  the  con¬ 
stitution  ;  and  many  other  expressions  of  that  nature 
had  been  employed,  which  by  no  means  argued  deco¬ 
rum,  and  could  not  serve  as  argument  with  any  mem¬ 
ber  of  that  house.  The  malignant  passion  of  jealousy 
was  conjured  up,  to  be  the  herald  of  this  civil  discord, 
and  the  most  disastrous  afflictions  were  predicted  as  the 
consequence.  In  glancing  at  these  unwarranted  and 
unwarrantable  sentiments,  he  had  assumed  it  as  a  prin¬ 
ciple  not  to  be  overthrown,  that  free  governments  must 
exist  upon  moral  rectitude,  or  perish  ;  and  that  if  the 
United  States  were  capable  of  being  actuated  to  rage  by 
their  pernicious  and  destructive  passions,  rectiude  and 
morality  would  no  longer  exist  among  them,  and  they 
must  be  destroyed  by  each  other.  What,  sir,  because 
there  are  strong  and  powerful  states,  must  the  weak  be 
tolerated  to  menace  them  with  injury  and  bloodshed, 
without  the  liberty  of  warring  against  the  fatal  conse¬ 
quences  ?  Are  strong  men  bound  to  bear  the  wrongs 
done  them  by  the  weak  !  Are  the  rich  to  fold  their 
arms  and  bear  to  be  robbed  by  the  poor  with  silence 
and  without  remonstrance  ?  Yet  such  is  the  inference 
that  must  be  made  from  what  the  gentleman  has  under¬ 
taken  to  call  a  threat.  Wherefore  threaten  with  good  ? 
Can  evil  be  the  result  of  good,  or  good  of  evil  ?  Natu¬ 
ral  and  moral  consequences  flow  from  moral  actions  ; 
«id  when  there  are  any  who  undertake  to  do  evil,  it 


(  50  ) 


is  but  strict  justice  he  should  suffer.  He  found  some 
difficulty  in  bringing  himself  to  notice,  this  charge 
of  a  threat  .because  he  had  perceived  particu¬ 
larly  in  the  paper  published  in  this  city  a  common 
practice  of  misrepresentation.  In  a  former  days 
debate  he  had  alluded  to  the  fatal  effects  which  tne 
British  government  had  produced  on  the  liberty  and  pros¬ 
perity  of  that  country,  by  the  means  of  the  rotten  oo- 
roughs  ;  and  he  had  been  misrepresented  as  depreciating 
the  small  states  and  describing  them  as  the  rotten  bo¬ 
roughs  of  America.  It  must  be  obvious  that  a  purposed 
intention  to  misrepresent  could  alone  have  given  senti¬ 
ments  of  the  kind  as  uttered  by  him.  He  had  not  allud¬ 
ed  to  the  states  in  their  capacity  as  states ;  he  had  ob¬ 
jected  to  elections  by  diets,  and  the  small  states  having  but 
few  representatives,  he  stated  as  more  exposed  to  coirupt 
attempts  upon  them,  than  states  where  the  number  was 
larger.  In  an  election  by  the  house  of  representatives 
this  would  be  the  case — some  states  have  but  one,  others 
two  representatives,  attempts  would  be  made  upon  them, 
and  though  we  have  had  virtue  enough  to  resist  tempta¬ 
tion,  our  country  must  be  like  all  others  subject  to  the 
casual  decay  of  virtue,  and  at  a  future  day  the  represen¬ 
tatives  of  small  states  may  become  as  venal  as  those  of 
the  rotten  boroughs  of  England ;  and  no  longer  repre¬ 
sent  the  feelings,  the  interests,  or  the  freedom  of  their 
country. 

Mr.  Adams  in  a  former  debate  had  stated  that  he  had 
not  a  wish  to  avoid  or  seek  for  the  yeas  and  nays  on  any 
question,  on  the  present  occasion,  however,  he  would 
when  the  question  was  taken  call  for  the  yeas  and  nays. 
But  his  own  vote  on  the  final  question  would  be  governed 
by  the  decision  of  the  number  5,  and  he  wished  to  have 
some  record  of  his  vote,  that  he  might  be  hereafter  able  to 
defend  himself  against  any  charge  of  inconsistency  .  On 
the  principle  of  the  amendment  he  had  formed  his  opi¬ 
nion,  and  he  was  free  to  confess,  that  notwithstanding  the 
many  able  productions  which  he  had  seen  against  it,  he 
thought  it  calculated  to  produce  more  good  than  evil.  He 
was  not  however  influenced  in  this  opinion  by  the  instruc¬ 
tions  which  had  been  read  in  a  preceding  debate  from  a 
former  legislature  of  Massachusetts  to  their  senators  ;  he 
presumed  these  were  not  read  by  way  of  intimidation  ; 
to  the  instructions  of  those  to  whom  he  owed  his  seat  in 
that  house  he  would  pay  every  respect  that  was  due, 


(  51  ) 


but  he  did  not  think  that  the  resolutions  of  a  legislature 
passed  in  March  1799  or  1800  ought  to  have  the  same 
weight ;  since  that  time  four  total  and  complete  changes 
had  taken  place,  and  probably  not  one  third  of  those  who 
gave  those  instructions  now  remained  ;  he  held  a  seat  in 
the  legislature  himself  three  years  since,  but  did  not  per¬ 
ceive  any  particular  anxiety  on  the  subject,  and  he  did  not 
think  that  the  present  legislature  would  be  extremely  of¬ 
fended  if  he  were  to  give  a  direct  vote  against  what  was 
recommended  four  years  ago.  But  as  it  seemed  to  be 
read  to  influence  him  he  would  state  his  reasons  for  his 
vote. 

Upon  the  alteration  of  the  number  from  that  agreed 
upon  by  the  house  of  representatives,  several  arguments 
had  been  offered  ;  they  were  of  three  descriptions. 

1.  That  no  alteration  of  the  constitution  ought  to  take 
place  unless  it  should  be  indispensibly  necessary,  and  that 
in  altering  the  constitution  no  departure  should  be  made 
from  its  spirit. 

2.  That  it  ought  not  to  be  carried  in  the  house  of 
representatives. 

3.  That  the  alteration  proposed  would  effect  the  small 
states. 

To  the  first  he  would  say  that  although  the  amend¬ 
ment  might  be  useful,  yet  it  was  not  indispensibly  neces¬ 
sary. 

The  gentleman  from  South  Carolina  (Mr.  Butler)  had 
argued  on  the  necessity  of  adhering  to  the  principles  of 
the  constitution  on  a  former  day  with  great  force  ;  and  tho* 
his  arguments  were  used  upon  an  amendment  of  another 
kind  proposed  by  himself  they  applied  in  this  case  as 
closely  as  possible  ;  the  same  arguments  had  been  used  by 
other  gentlemen,  on  a  suggestion  of  the  gentleman  from 
Jersey  (Mr.  Dayton)  concerning  tiie  abolition  of  the 
office  of  vice  president  ;  it  is  true  that  some  gentlemen 
declared  that  they  had  no  objection  to  the  abolition  but 
disapproved  ofthetimeit  was  brought  forward,  he  agreed 
and  voted  with  the  gentleman  on  that  occassion. 

But  the  ground  is  now  changed  and  we  are  told  that 
the  principle  of  designation  is  not  so  much  the  choice  as 
to  keep  the  election  out  of  the  house  of  representatives 
and  in  a  variety  oi  ingenious  arguments  we  are  referred 
back  to  antiquity  to  justify  the  injurious  effect  resulting 
Irom  elections  by  diets.  As  a  speculation  upon  the 
principles  of  government  he  admired  the  gentleman’s 


(  52  ) 

«•  » 

information  and  eloquence)  but  he  was  not  prepared  to 
act  upon  the  principle.  We  had  been  shewn  the  great 
inconveniencies  of  carrying  the  elections  into  the  house 
of  representatives  ;  make  it  a  separate  question,  and  let 
it  be  fairly  and  fully  discussed  and  he  would  then  pre¬ 
pare  his  mind  to  vote.  But  before  he  could  act  on  it 
now,  he  would  just  observe,  that  if  you  do  not  pursue  that 
course  you  pursue  some  other  and  it  would  be  necessary 
to  provide  a  substitute  before  we  abandon  mat  we  possess. 
This  consideration  he  therefore  thought  had  no  concern 
with  the  subject  before  us 

On  the  third  point,  that  it  would  essentially  affect  the 
rights  of  the  sir. ad  states,  he  thought  it  the  true  object 
oi  discussion  ;  and  he  saw  it  wholly  as  a  federative  ques¬ 
tion,  and  rejects  all  arguments  oi  the  popular  kind.— 
From  the  mode  in  which  it  had  been  argued  the  question 
would  seem  to  be  a  dispute  between  16  small,  and  one 
large  state.  The  constitution  however  was  a  combina¬ 
tion  of  federative  and  popular  principles.  When  you 
argue  upon,  or  wish  to  change  any  of  its  federative  prin¬ 
ciples,  you  must  use  analogies  as  arguments ;  popular 
arguments  w  ill  not  apply  to  federative  principles.  1  he 
house  of  representatives  was  founded  on  popular  prin¬ 
ciples;  in  this  house  the  representation  is  federative,  and 
not  popular,  it  is  in  its  nature  aristocratic.  The  founda¬ 
tion  cf  ail  popular  representation  is  equality  of  votes ; 
blit  even  the  ratio  of  representation  is  different  in  diffe¬ 
rent  states;  the  numbers  in  Massachusetts  and  Virgi¬ 
nia,  in  Vermont  and  Delaware  are  different  in  their  pro¬ 
portions  ;  but  still  an  equality  of  representation  is  pre¬ 
served,  and  the  only  difference  is  in  the  details. — r  ut  if 
you  argue  upon  the  principles  of  the  Senate,  this  equali¬ 
ty  of  popular  representation,  or  by  an  equal  or  relatively 
equid  numbers  will  not  apply,  you  must  discuss  it  upon 
another  species  of  equality,  the  equality  of  sovereignties, 
and  the  independence  of  several  states  federatively  con¬ 
nected.  Applying  principles  then  to  the  election  of 
President  if  you  reduce  the  number  from  which  the  house 
of  representatives  is  authorised  to  choose,  do  you  not 
attack  the  principles  of  tire  federal  compact,  rather  than 
the  rights  cf  the  small  states. — The  executive  it  had  been 
said,  is  the  man  of  the  people,  true  and  he  is  also  as  was 
said  though  upon  different  grounds,  the  man  of  the  le¬ 
gislature — it  was  here  a  combined  principle  federative 
and  popular.  Virginia  had  in  that  house  22  popular  re- 


(  53  ) 


preservatives,  in  this  she  has  2  federative ;  Delaware  ha$ 
I  popular  aud  2  federative  representatives.  And  even 
in  the  operation  of  election  in  the  popular  branch  of  con¬ 
gress,  the  federative  principle  is  pursued,  and  the  state 
which  has  only  one  popular  representative  has  an  equal 
voice  in  that  instance  with  the  state  that  has  22  popular 
representatives.  It  was  therefore  evident  that  the  at¬ 
tempt  to  alter  the  number  -from  5  to  three,  is  an  attack 
upon  the  federative  principle  and  not  upon  the  smalt 
states.  - 


In  answer  to  the  gentleman  from  Jersey  (Mr.  Day- 
ton)  the  gentleman  from  Maryland  (Gen.  Smith)  had 
said  he  was  not  surprized  to  hear  him  who  was  a  member 
of  the  old  confederation  talk  of  the  jealousy  of  states,  and 
expressed  much  exultation  that  those  state  jealousies' 
haa  been  long  laid  asleep,  that  he  had  been  ten  years 
in  the  government  and  had  heard  nothing  of  them,  hop¬ 
ed  never  to  hear  of  them  again.  He  was  equally  happy 
that  they  had  been  so  long  laid  asleep,  but  why  was  it 
that  they  had  not  complained  ?  For  very  different  rea¬ 
sons  from  those  which  had  been  inferred.  It  was  be¬ 
cause  the  excellent  provisions  of  the  constitution  had 
guarded  against  all  cause  of  complaint.  The  states  had 
no  reason  to  murmur  ;  and  they  had  not  been  stirred  up ; 
but  is  it  to  be  therefore  inferred,  that  if  you  now  give 
them  cause,  that  they  will  be  equally  silent,  and  that  it 
ma\  not  tend  to  civil  discord.  He  knew  of  nothing  more 
likely  to  stir  them  up,  than  an  attempt  to  reform  your 
federative  institutions  upon  popular  principles. 

I  he  gentleman  from  V  irginia  as  he  understood  him 
the  other  day,  had  intimated  that  the  smaller  state  sought 
to  be  cautious  how  they  excited  the  indignation  of  the 
large  stales,  on  this  account  he  had  complained  that  the 
gentleman  from  Jersey  had  misrepresented  him ;  from 
.he  illustration  of  his  sentiments  now  given  he  was  per¬ 
suaded  that  no  threat  was  intended  on  that  occasion,  but 
is  impression  w as  made,  it  surely  was  incumbent  on 
those  who  felt  it,  to  notice  it.  Was  it  unnatural  for  a  gen¬ 
tleman  coming  from  a  comparatively  small  state  tolfeel 
indignant  under  such  a  circumstance?  The  gentleman 
rom  Virginia  (Mr.  laylor)  is  so  ingenious  that  like  all 
ngenous  men,  his  sentiments  are  not  at  once  accessible 
>y  plain  minds,  and  to  this  cause  misapprehension  ought 
o  be  attributed.  6 


Another  gentleman  from  Virginia  (Mr.  Nicholas)  had 
’aid  that  the  amendment  had  originated  with  the  small 


(  34  ) 


states,  that  the  small  states  having  a  majority  in  this 
house  and  a  majority  of  the  legislatures,  may  defeat  it 
if  they  choose  ;  and  these  are  with  him  decisive  as  to 
safety.  But  the  gentleman  has  not  taken  into  view  that 
this  question  of  number  has  never  been  befoie  die  states, 
and  that  having  had  no  opportunity  to  examine  it,  the  ar¬ 
guments  do  not  apply.  It  is  by  this  principle  his  own 
vote  should  he  regulated ;  if  3  were  adopted  he  should 

vote  against  the  amendment. 

But  the  gentleman  Mr.  Taylor  had  taken  another  no¬ 
vel  ground  ;  that  the  smaller  number  was  the  most 
fgvorable  to  the  small  states.  This,  however,  he  sup¬ 
ported  by  a  mode  of  argument  to  which  he  had  himself 
objected.  He  had  argued  that  if  it  was  proposed  to  vest 
the  election  of  president  in  the  house  of  representatives 
exclusively,  it  would  not  be  agreed  to  by  the  small  states, 
because  it  was  contrary  to  their  interests.  But  this  was 
an  extreme  case,  and  the  gentleman  well  knew  that  so 
far  from  its  being  consistent  with  sound  logic  to  argue 
from  extreme  cases,  they  are  not  admitted  into  argu¬ 
ment  at  aii. 

Gen.  o.  Smith,  when  he  made  the  motion  for  filling 
up  the  blank  with  3,  did  it  after  the  most  deliberate  consi¬ 
deration  of  the  theory  and  the  principles  of  the  constitu¬ 
tion  ;  which  if  he  understood  it  right  intended  that  the  elec¬ 
tion  of  the  executive  should  be  in  the  people,  or  as  nearly.  - 
as  was  nracticabie,  consistent  with  public  order  and  se¬ 
curity  to  the  right  of  suffrage.  The  provision  admitting 
the  choice  by  the  house  of  representatives,  was  itself 
intended  only  for  an  extreme  case,  where  great  inconve¬ 
nience  might  result  from  sending  a  defective  election 
back  to  the  people,  as  is  customary  in  Massachusetts 
where  if  the  majority  is  deficient,  a  new  election  is  re¬ 
quired.  Our  object  in  the  amendment  is  or  should  be 
to  make  the  election  mere  certain  by  the  people.  1  his 
was  to  be  done  most  effectually  by  leaving  it  to  them  to 
designate  the  persons  whom  they  preferred  for  each  office 
—As  under  the  present  form  there  was  an  extreme 
case,  so  there  might  be  when  the  change  of  number 
should  take  place  ;  ior  aitho’  even  with  tne  number  three 
there  was  a  possibility  of  the  choice  devolving  on  the  house 
of  representatives,  yet  the  adoption  of  the  designating 
principle  and  the  number  3,  would  render  the  case  less 
probable.  It  never  was  the  intention  of  the  powers  of 


I 


(  55  ) 


the  constitution  that  the  election  should  go  to  the  house 
ol  representatives,  but  in  the  extreme  case ;  nor  was  it 
ever  contemplated  that  about  one  fifth  of  the  people 
should  choose  a  president  for  the  rest,  which  certainly 
would  be  the  case,  if  what  some  gentlemen  contend  for 
were  to  take  place.  When  gentlemen  contend  for  such 

a  power,  as  would  transfer  the  choice  from  the  people _ . 

and  place  it  in  the  hands  of  a  minority  so  small ;  how 
happens  it  that  gentlemen  will  not  bear  to  hear  of  the 
efforts  which  such  arguments  or  such  measures  would 
produce  on  the  large  states.  It  was  not  the  interest  of 
of  the  small  states  to  combine  against  the  large.  Suppose 
it  were  possible  that  the  four  large  states  should  combine, 
and  a  combination  of  the  small  states  alone  could  produce 
such  an  effect  :  Nine  states  in  the  union  have  but  32 
votes  out  of  142— .yet  9  states  with  one  vote  each  make 
a  majority  of  17  ;  tho’  in  relation  to  population  they  con¬ 
tain  only  about  one  fifth  of  the  whole,  and  by  such  a 
proceeding  the  one  fifth  might  chuse  president  and  vice 
president  in  defiance  of  the  other  four  fifths.  What 
would  be  the  consequence  of  such  an  election  ?  At  a 
subsequent  election  the  large  states  would  combine,  and 
by  the  use  of  their  votes  they  would  frustrate  every  object 
which  the  small  states  might  use  their  efforts  to  accom¬ 
plish. 

Notwithstanding  what  had  been  said  concerning  the 
jealousy  of  states,  he  could  see  nothing  in  it  but  the 
leaven  of  the  old  congress,  thrown  in  to  work  up  feel¬ 
ings  that  had  been  long  still.  It  was  the  forlorn  hope, 
the  last  stratagem  of  party  ;  and  he  was  the  more  dis¬ 
posed  to  think  so,  when  he  sawr  gentlemen  from  the 
large  states  coming  forward  as  the  champions  of  the 
small— .this  might  to  be  sure,  be  magnanimity  ;  but  if 
his  discernment  did  not  deceive  him,  it  was  a  stratagem 
to  divide  the  friends  of  the  amendment.  Why  was  not 
the  same  jealousy  entertained  of  the  power  of  13  cut  of 
17,  combining  and  giving  absolute  law  to  the  other  four  ? 
V/  hy  have  gentlemen  paid  no  regard  to  the  experience 
which  they  have  had  from  the  last  election,  when  less 
than  one  third  of  the  members  harrassed  the  public 
mind,  kept  the  union  in  agitation,  and  congress  engros¬ 
sed  to  the  exclusion  of  nearly  all  other  business  for  two 
weeks.  Suppose  that  the  house  had  been  as  accessible 
to  corruption,  as  the  diets  of  other  nations  have  been, 
and  that  three  inen,  having  in  their  power  the  votes  of 


4 


(  56  ) 


three  states,  had  been  seized  upon,  and  the  election  .made 
contrary  to  the  wishes. of  the  people  Vv  hat  would  be 
the  effect — on  the  minds  of  the  people— on  the  adminis¬ 
tration  of  the  government — and  on  the  attachment  which 
the  people  feel  for  the  constitution  itself  ?  He  need  not 
attempt  to  describe  the  effects.  But  it  is  our  out)  to 
prevent  the  return  of  such  dangers,  by  keeping  the  elec¬ 
tion  out  of  that  house.  And  the  most  effectual  mode  is 
to  fix  the  selection  from  the  number  3. 

The  gentleman  from  Jersey  had  affected  to  consider 
a  comparison  of  the  effects  of  combinations  ot  s^tes, 
as  a  threat  against  the  small  states.  He  had  listened 
as  he  always  did  to  the  ingenious  arguments  of  the  gen¬ 
tleman  from  Virginia  (Mr.  Taylor)  he  thougnt  he  had 
attended  to  his  arguments  with  particular  attention  on 
that  occasion,  because  they  carried  to  his  minci  tn.d 
conviction  which  truth  always  carries  couched  in  the 
language  of  sincerity.  To  him  the  gentleman  s  ousel - 
vations  on  that  day  conveyed  the  same  ideas  and  con¬ 
victions  which  his  explanations  conveyed  this  day  in  a 
more  copious  wav  ;  but  to  him  it  appeared  impossible— 
and  if  he  had  not  heard  the  gentleman  from  Jersey  (he 
confessed  writh  astonishment)  he  could  not  have  believed 
it  practicable  to  give  any  colouring  of  menace  to  his 
arguments.  The  gentleman  from  Jersey  had  cenaJied 
the  gentleman  from  Georgia,  for  his  attention  to  the 
state  which  he  represented  ;  but  what  bearing  had  the 
gentleman’s  discharge  of  his  duty  to  his  state  on  the 
present  question  l  The  gentleman  from  Georgia  had 
not  taken  up  the  present  question  on  the  narrow  ground 
of  a  selfish,  jealous  and  illiberal  policy,  but  upon  great 
national  principles  ;  it  was  the  practice  of  that  gentleman 
to  act  ;  it  was  his  practice  to  discharge  his  duty  with 
fidelity  to  his  state  and  to  his  country  at  large,  and  such 

conduct  reflected  honor  on  him. 

The  gentleman  from  Massachusetts  (Mr.  Adams)  says 
we  had  forgot  the  main  object,  that  we  changed  our 
ground  and  that  having  first  claimed  the  designating 
principle  we  abandoned  it  in  order  to  keep  the  election  pf 
president  out  of  the  house  of  representatives.  The  gen¬ 
tleman  had  misconceived  the  subject  entirely  ;  if 
would  only  consider  the  subject  again  he  would  find  that 
nothing  had  been  abandoned,  nor  any  tiling  new  assumed 
—he  would  find  that  the  principles  correspond  so  ex¬ 
actly  as  to  support  and  enforce  each  other.  It  is  to 


(  57  ) 


place  the  election  in  the  hands  of  the  people  we  wish  to 
designate — it  is  for  the  same  purpose  we  wish  to  keep 
the  election  out  of  the  house  of  representatives — it  is  to 
prevent  intrigues  we  wish  to  designate,  it  is  to  prevent 
intrigues  we  wish  to  keep  the  choice  out  of  the  house 
of  representatives — it  is  to  conform  the  election  out  of 
three  instead  of  hve  to  the  spirit  of  the  constitution  that 
we  wish  to  adopt  that  number — and  the  wish  to  keep  it 
out  the  house  of  representatives  is  already  sanctioned  by 
the  constitution.  Where  then  is  this  contradiction— 
this  abandonment  of  one  principle  and  adoption  of  another. 
When  he  referred  to'  one  part  of  the  gentleman’s  speech 
and  compared  it  with  another  he  felt  some  concern 
when  he  considered  the  gentleman  as  the  champion  of 
the  small  states. 

Mr.  Adams  said  he  did  not  profess  to  be  the  cham¬ 
pion  of  the  small  states. 

Gen.  Smith — When  the  gentleman  first  rose  he  said 
he  was  the  representative  of  a  large,  and  he  did  call  for 
the  champions  of  the  small  states  to  come  forth,  in  their 
defence  ;  upon  the  failure  of  an  answer  to  this  challenge 
he  had  boldly  entered  the  lists  himself  in  their  defence 
and  carried  his  chivalry  so  far  as  to  marshal  the  contend¬ 
ing  parties  contrary  to  all  former  order,  into  1 6  small 
and  one  large  state  !  What  was  the  intention  of  this  mode 
of  distinction,  to  what  end  was  it  directed?  Was  it  not 
to  excite  envy  and  jealousy,  the  worst  of  all  passions 
which  affect  man — was  it  consistent  with  professions  of 
regard  for  the  public  good  to  encourage  this  rivalry  of 
states — the  commercial  against  the  agricultural— the  east 
against  the  south — the  small  against  the  large — there 
was  something  in  this  beside  liberality.  He  says  he  is 
not  the  champion  of  the  small  states — yet  he  tells  you 
how  they  could  be  stirred  up  and  what  would  be  the  con¬ 
sequence  if  they  were  roused — he  tells  you  of  the  dis¬ 
tinction  between  federative  and  popular  principles— and 
has  employed  all  his  ingenuity  to  induce  the  belief  that 
we  wish  to  undo  the  federative  principle,  to  sacrifice  it  to 
the  popular  principle,  which  is  he  has  told  you  the  thing 
above  all  others  which  would  stir  up  the  small  states  and 
no  doubt  arm  this  glassification  of  16  against  the  one  state 
But  the  people  were  not  to  be  stirred  up  by  such  argu¬ 
ment — they  would  know  the  value  of  national  union  and 
unanimity  to  their  prosperity  and  liberty’ too  well  to  be 
led  away  by  any  thing  we  may  say  or  do  on  this  floor. 

H 


(  58  ) 


While  he  was  up  he  would  offer  an  observation  or  two 
on  what  had  fallen  from  the  gentleman  from  South  Carolina. 
He  had  said  that  the  object  of  the  amendment  was  to  pre¬ 
vent  the  election  of  a  federal  vice  president.  Undoubted¬ 
ly  such  would  be  the  effect  of  the  amendment.  The 
real  effect  of  the  amendment  was  two-fold— -to  guard 
against  the  dangers  of  intrigue  and  corruption,  and  to 
place  the  choice  in  the  power  of  the  people.  Could  that 
gentleman  who  was  a  member  of  the  convention  object 
to  render  one  of  its  fairest  and  best  principles  more  safe 
and  secure?  Was  it  an  objectionable  principle  to  secure 
to  the  majority  of  the  people  the  right  of  chusing  their 
chief  officers.  This  was  intended  by  keeping  the  elec¬ 
tion  out  of  the  other  house,  and  by  limiting  the  number 
to  3  to  leave  as  little  room  for  corruption  as  possible,  shomd 
it  ever  devolve  by  any  accident  on  that  house  to  make  the 
choice.  For  if  ever  the  right  should  again  devolve  on 
that  house,  he  not  only  saw  reason  to  apprehend  corrup¬ 
tion  among  ourselves  but  dread  it  from  foreign  nations. 
Had  our  people  been  as  corrupt  as  European  nations 
generally  are,  there  was  a  facility  for  it  at  our  late  elec¬ 
tion  •  but  the  members  were  incorruptible  and  we  were 
saved  It  is  to  guard  against  the  danger  we  look  lor 
this  amendment.  That  gentleman  being  a  member  of 
the  convention  who  formed  the  constitution  deems  it 
sacrilege  to  touch  that  instrument,  yet  in  an  early  state  of 
discussion  he  had  found  that  sacred  as  it  was  tofchim  there 
was  a  part  which  he  wished  to  change,  and  had  brought 
forward  an  amendment  for  the  purpose.  1  he  merits  of 
that  gentleman’s  amendment  he  was  not  now  called  upon 
to  dicuss,  but  with  the  lights  which  he  at  present  possessed, 
it  was  probable  he  might  give  it  his  approbation  ;  and  it 
surely  could  not  be  deemed  so  extraordinary  it  offier 
gentlemen  should  wish  to  amend  certain  parts,  when  one 
of  the  framers  of  the  constitution  had  thought  it  suscepti¬ 
ble  of  amendment.  . 

Mr.  Pickering  had  not  intended  to  have  spoken  on 

'  this  question  so  far  as  it  concerned  the  numbers  ;  butts 
he  should  probably  vote  differently  from  his  colleague, 
he  conceived  it  proper  to  give  his  motives  for  Ins  vote 
His  wishes  for  the  entire  preservation  of  the  consatut.on 
were  so  strong,  that  he  regretted  any  change  wascon- 
tempTated  to  be  made  in  it,  and  he  Wished  if  an i  aim 
tion  was  made  to  keep  as  near  as  possible  o  lespni 
constitution  as  it  now  is,  and  it  appeared  to  mm  a 


(  59  ) 


number  three  conformed  more  to  that  spirit  than  the 
number  five — -he  believed  it  to  be  the  intention  of  the 
constitution,  that  the  people  should  elect.  As  to  what 
gentlemen  said  concerning  the  will  of  the  people,  he  paid 
but  little  regard  to  it,  the  will  of  the  people,  he  did  not 
know  how  the  will  of  the  people  could  be  known  ;  how 
gentlemen  came  by  it  ;  it  would  not  be  asserted  that  it 
was  to  be  found  in  the  newspapers  ;  or  in  private  socie¬ 
ty  ;  in  truth  he  believed  it  never  had  been  fairly  expres¬ 
sed  on  the  subject.  We  have  seen  an  amendment 
brought  forward  from  New  York,  but  was  that  an  expres¬ 
sion  of  the  public  opinion ;  if  it  was,  it  was  a  very  re¬ 
markable  one,  for  it  contained  an  absurdity — -visible  to 
every  one.  He  wished  to  avoid  innovations  on  the  con¬ 
stitution,  and  to  preserve  the  combined  operation  ot  fe¬ 
derative  and  popular  principles  upon  which  it  rested  un¬ 
impaired. 

Mr.  Worthington  hoped  the  number  3  would  be 
adopted  in  preference  to  5.  Nevertheless  be  approved 
so  much  of  the  principle  of  designation  in  the  election 
of  the  president,  and  vice  president,  that  rather  than  lose 
it  he  would  vote  for  it  with  either  number. 

The  yeas  and  nays  being  called  for  on  filling  up  the 
blank  with  the  largest  number  according  to  order — the 
votes  were  as  follows. 


Messrs. 


Adams, 

YEAS, 

Dyton, 

Bailey, 

Hillhouse, 

Butler, 

Olcott, 

Condit 

Plumer, 

Baldwin, 

NOES. 

Franklin, 

Bradley, 

Jackson, 

Brackenridge, 

Logan, 

Brown, 

Maclay, 

Cocke, 

Nicholas, 

Ellery, 

Pickering, 

Worthington — 

-19. 

T  racy. 

Wells, 

White, 

^W  right.— 12.  " 


Potter, 

Israel  Smith, 
John  Smith, 
Sami.  Smith, 
Stone, 

T  aylor, 


The  question  on  the  insertion  of  the  number  three 
being  inserted  was  then  put,  and  the  yeas  and  nays  being 
demanded  by  one  fifth  of  the  members  present— -they 
were  as  follows : 


4 


(  60  ) 


Messrs.  Bailey, 
Baldwin, 
Bradley, 
Brackenridge, 


Brown, 
C ocKe , 
Ellery, 


YEAS. 
Fran  kIih, 
Jackson, 
Logan, 
Maclay, 
Nicholas, 


-  Israel  Smith 
John  Smith, 
Sami.  Smith, 
Stone, 


Taylor, 


Pickering, 


Potter, 

NAYS. 


W  orthington, 
Wright - 21. 


Messrs.  Adams, 


Hillhouse, 


Tracy, 

W  ells, 

White - 10. 


Butler, 

Condit, 

Dayton, 


Olcott, 

Plumer 


The  house  then  ad 


Ijourned. 

NOVEMBER  30. 


The  senate  resumed  the  consideration  of  the  report 
on  the  amendment  to  the  constitution  as  amended  yes¬ 
terday,  which  was  read  as  follows. 

1  Resolved,  by  the  senate  and  house  of  representatives  of  the 

2  United  States  of  America,  in  congress  assembled,  two  thirds 

3  of  both  houses  concurring,  .hat  the  following  amendment  be 

4  proposed  to  the  legislatures  of  the  several  states  as  an  amend- 

5  ment  to  the  constitution  of  « he  United  States  which  when  ra- 

6  tilled  by  three  fourths  of  the  said  legislatures,  shall  be  valid  to 

7  all  intents  and  purposes  as  a  part  of  the  said  constitution,  viz. 

8  In  all  future  elections  of  president  and  vice  president,  the 

9  electors  shall  name  in  their  ballots  the  person  voted  for  as  presi- 
10  dent,  and  in  distinct  ballots,  the  person  voted  for  as  vice  presi¬ 
ll  dent,  of  whom  1  at  least  shall  not  be  an  inhabitant  of  the  same 

12  state  with  themselves.  The  person  voted  for  as  president  having 

13  a  majority  of  the  votes  of  all  the  electors  appointed,  shall  be 

14  the  president ;  and  if  no  person  have  such  majority,  then  from 

15  the  3  highest  on  the  list  of  those  voted  for  as  president,  the 

16  house  of  representatives  shall  choose  the  president.  But  in 

17  choosing  the  president,  the  votes  shall  betaken  by  states  the 

18  representation  from  each  state  having  one  vote  a  quorum  for 

19  this  purpose  shall  consist  of  a  member  or  members  from  two 

20  thirds  of  the  states,  and  a  majority  of  all  the  states  shall  be  ne- 

21  cessary  to  a  choice. 

22  The  person  having  the  greatest  number  of  votes  as  v.  pre- 

23  sident,  shall  be  the  v.  president  if  such  number  be  a  majority 

24  of  the  whole  number  of  electors  appointed,  and  if  no  person  have 

25  a  majority,  then  from  the  two  highest  numbers  on  the  list,  the 

26  senate  shall  choose  the  vice  president  ;a  quorum  for  the  pur- 

27  pose  shall  consist  of  two  thirds  of  the  whole  number  of  senators 

28  and  a  maj  crity  of  the  whole  number  shall  be  necessary  to  a 

29  choice.  But  no  person  constitutionally  ineligible  to  the  office 

30  of  president,  shall  be  eligible  to  that  of  vice  president  of  the 

31  United  States. 

Mr.  Bradley  thought  some  provision  should  be 
made  against  the  difficulties  which  might  arise  upon  an 
equality  of  votes  between  several  candidates.  For  exam- 


(  61  ) 


p!e>  tho’  the  amendment  as  it  stands  contemplates  a 
choice  from  the  three  highest,  there  may  be  four  who 
have  equal  numbers. 

Mr.  Wright  said  it  was  not  possible  under  the  desig¬ 
nating  principle  for  four  persons  to  have  an  equal  num¬ 
ber  and  have  a  majority  of  the  whole  of  the  votes  like¬ 
wise. 

Mr.  Adams  thought  that  some  explanation  should  be 
given  oi  tr.e  principle  upon  which  the  votes  were  to  be 
counted ;  and  if  it  were  to  go  to  the  house  of  representa¬ 
tives  whether  the  choice  was  to  be  made  from  the  three 
highest  numbers,  even  if  three  were  unequal,  or  if  only 
two  were  equal  in  numoers  and  the  third  being  one  of 
the  highest  were  stiil  less  in  number  than  the  other  two. 

Mr.  Bradley  said  that  under  the  amendment  as  it 
new  stood  a  candidate  with  one  vote  may  be  chosen  ; 
for  there  had  been  single  votes,  and  there  being  two  can¬ 
didates  equal  in  votes,  then  the  house  of  representatives 
wouid  have  the  power  to  cause  the  third — he  would 
offer  an  amendment. 

Gen.  Smith  wished  the  gentleman  'would  let  his 
amendment  lie  over  for  the  present — or  it  mignt  be 
printed. 

Mr.  Taylor  thought  that  the  word  highest  in  the 
1 5th  iine  should  be  changed. 

Mr.  Butler — it  is  evident  gentlemen  cannot  agree 
among  themselves ;  now  if  one  side  proposes  one  mea¬ 
sure  and  another  a  second  measure,  and  so  on  to  a  third 
and  a  fourth,  all  of  which  appeared  to  him  objectionable 
there  was  little  prospect  of  arriving  at  any  useful  conclu¬ 
sion.  \  esterday  we  had  heard  of  objections  to  extreme 
cases;  and  yet  all  the  arguments  used  were  drawn  from 
extreme  cases ;  if  they  were  data  then  they  must  be  data 
now.  But  it  was  very  clear  that  the  real  object  was 
to  take  away  from  a  portion  of  society  every  share  of 
participation  in  the  choice  of  vice  president.  If  the 
people  could  but  have  heard  their  representatives  yes¬ 
terday,  they  could  not  but  smile  at  them.  Notwithstand¬ 
ing  the  respect  which  he  personally  bore  for  the  gentle¬ 
man  from  V  irginia  (Mr.  Taylor)  he  did  not  completely 
explain  to  his  satisfaction  the  menace  against  the  smaller 
states.  As  to  those  arguments  which  were  employed 
against  the  election  devolving  on  the  other  house,  he 
thought  it  was  paying  the  people  a  poor  compliment  to 
*uy  they  make  a  selection  of  representatives  for  that 


(  62  ) 


house  in  whom  trust  cannot  be  placed ;  and  that  their 
delegates  resemble  the  representatives  of  rotten  English 
boroughs ;  this  he  thought  an  extreme  case,  an  extremely 
hard  case.  We  had  been  told  also  that  the  people  wish- 
ed  for  the  number  3.  lie  should  like  to  hat  e  some  other 
evidence  than  the  bare  opinion  of  gentlemen. 

The  president  called  to  order. 

Mr.  Butler  was  willing  to  reserve  what  he  had  to 
s&v  to  a  future  time. 

Xhb  President  observed  the  house  was  no  v  ready 
to  receive  amendments  proposed  by  gentlemen. 

Mr.  Butler  thought  the  member  from  \  crmonts 
amendment  should  have  the  preference  as  it  was  first 

oS'crcd.  '  - 

Mr.  Bradley’s  amendment  was  called  up  read  and 

lost,  ayes  10,  noes  20.  .  .  J 

A  desultory  presentation  of  amendments,  .  wit.iput 
o-oinp*  into  detailed  argument,  now  took  place-in  w  men 
general  Jackson,  Messrs.  Taylor,  Nicholas,  Wright  and 
Tracy  took  part  ; 

When  .  ,  r  m 

Mr.  Adams  observed  from  the  multitude  ot  ameuo 

meats,  it  now  became  difficult  to  comprehend  it  he  sug¬ 
gested  the  propriety  of  adjourning  so  that  the  amend¬ 
ments  might  be  all  printed  which  was  agreed  to. 
Thursday,  dec.  1,  1803. 

He  house  took  up  the  amended  report,  as  amended 
the  preceding  day,  which  was  as  follows  : 

1  Reached,  by  the  senate  and  house  of  representatives  of  dw 

2  United  States  of  America,  in  congress  assembled, 

3  of  bothhouses  concurring,  that  in  lieu  of  the  Paragraph  of 

4  the  first  section  of  the  second  article  of  the  ^nstitution  of  he 

5  United  States ,fhe  following  be  proposed  as  an  . 

6  constitution  of  the  United  States,  which  v\  en  r  valid  to  all 

7  fourths  e  f  the  legislatures  of  the  several  states^haU  he  valid  to  al 

8  intents  and  purposes,  as  part  of  the  saiu  consti  u  l  , 

9  The  electors  shall  meet  in  their  respective  states,  and  vote  b 

10  ballot  for  president  and  vice  president,  one  of  whom,  at  least, 

1 1  shall  not  be  an  inhabit antof  the  same  state  with  themselv  es ,  they 

12  shall  name  in  their  ballots,  the  person  voted  tor  as  Presidc  ’ 

13  in  distinct  ballots  the  person  voted  for  as  vice  president  and  they 

14  shall  make  distinc .  lists  of  all  persons  voted  for  as  preside*  , 

15  of  all  persons  voted  for  as  vice  president,  and  of The  nui  b 

16  votes  fer  each,  which  lists  they  shall  sign  an  ^cri1  _ 

17  mic  sealed  to  the  seat  of  the  government  ©f  the  Uwttd i  b  » 

18  directed  to  the  president  of  the  senate-  The  p 

19  senate  shall,  in  tlip  presence  cf  the  senate  and  ho Uoe  of  i  I  ^ 

20  tauve§,  open  ali  the  certificates,  ana  the  voi  s  “T4  ^ 

21  counted.  The  person  having  the  greatest  number  >f 


(  63  ) 


22  president,  shall  he  the  president,  if  such  number  be  a  majority  of 

23  the  whole  number  of  electors  appointed ;  and  if  no  person  hare 

24  such  majority, then  from  the  persons  having  the  highest  numbers 

25  not  exceeding  three  on  the  list  of  those  voted  for  as  president, 

26  the  house  of  representatives  shall  choose  immediately,  by  bal- 

27  lot,  the  president.  But  in  choosing  the  president,  the  votes 

28  shall  be  taken  by  states,  the  representation  from  each  state  hav- 

29  ing  one  vote  ;  a  quorum  for  this  purpose  shall  consist  of  a  mem- 

30  ber  or  members  from  two  thirds  of  the  states,  and  a  majority  of 

31  all  the  states  must  be  necessary  to  a  choice. 

32  The  person  having  the  greatest  number  of  votes  as  vide  pre- 

33  sident,  shall  be  the  vice  president,  if  such  number  be  a  majority 

34  of  the  whole  number  of  electors  appointed, and  if  no  person  have 

35  a  majority,  then  from  the  two  highest  numbers  on  the  list,  the 
26  senate  shall  choose  the  vice  president;  a  quorum  for  the  pur- 

37  pose  shall  consist  of  two  thirds  of  the  whole  number  of  se- 

38  nators,  and  a  majority  of  the  whole  number  shall  be  necessary 

39  to  a  choice.  But  no  person  constitutionally  ineligible  to  the 

40  office  of  President,  shall  be  eligible  to  that  of  vice  president  of 

41  the  United  States. 

Mr.  Dayton  moved  to  strike  out  from  the  words 
u  and  vice  president”  in  the  10th  line,  and  all  that  con¬ 
cerned  the  vice  president  in  that  paragraph. 

The  President  said  it  was  notin  order  to  strike  out. 
Mr.  Dayton  then  moved  to  strike  out,  all  that  related 
to  a  vice  president  in  the  32d  line  and  to  the  end  of  the  pa¬ 
ragraph. 

The  President  said  that  it  was  not  in  order  in  that 
stage  of  the  business  to  strike  out  any  part. 

Mr.  Dayton — If  there  is  no  way  to  come  at  the  abo¬ 
lition  of  that  office,  when  the  majority  of  the  senate  have 
it  so  much  at  heart,  he  must  even  give  it  up  as  a  fruitless 
attempt. 

Mr.  Tracy  concurred  in  the  decision  of  the  chair. — 
The  motion  however  arose  from  not  reading  the  reso¬ 
lution  three  times,  as  was  the  usage  with  bills ;  in  which 
cases  having  amended  them  on  a  second  reading,  you 
cannot  amend  on  a  third  without  the  consent  ol  the 
whole.  Here  you  have  amended,  and  the  resolution  is 
taken  up  amended ;  if  the  senate  is  determined  it  shall 
have  but  the  one  reading,  there  is  no  remedy  ;  but  the 
form  of  proceeding  is  so  different  from  parliamentary 
rules,  that  some  correction  of  it  should  take  place.  He 
asked  what  would  now  be  the  regular  question? 

The  president— on  inserting  the  amendments  adopted 
in  committee  of  the  whole,  in  the  report  ox  the  select 

committee.  . 


» 


(  64  ) 


t 

Mr.  Nicholas  said,  the  object  of  the  gentleman  from 
N.  Jersey  was  to  abolish  the  office  of  vice  president ;  but 
the  sense  of  the  senate  had  been  already  expressed  on 
that  subject;  he  hoped  the  time  of  the  house  would  not 
be  lost  on  a  subject  alrealy  decided. 

Mr.  Dayton  would  not  ask  any  favor. 

Mr.  Adams  If  an  amendment  cannot  be  inserted 
now,  he  thought  the  mode  of  proceeding  inconsistent 
with  order  ;  he  understood  originally,  it  was  decided  that 
j^o^hing  should  be  considered  as  tinal  wincn  has  not  the 
sanction  of  two  thirds ;  and  he  had  held  back  some  amend¬ 
ments  under  the  impression  that  it  was  stiil  open.  If 
the  rules  of  the  senate  determine  that  a  resolution  shall 
have  but  one  reading,  there  was  a  palpable  contradiction 
between  them  and  the  rules  of  the  otner  house. 

The  President  entered  into  a  circumstantial  detail 
of  the  progress  of  the  proceedings  on  the  amendment  ; 
and  concluded  by  stating  that  the  proceedings  had  been 
perfectly  regular  and  according  to  order  ;  that  in  the 
present  stage,  all  that  had  been  adopted  must  be  consi¬ 
dered  as  ready  for  the  final  vote ;  that  no  amendment 
could  be  made  inconsistent  with  what  had  been  already 
agreed  to  in  the  detail  ;  but  that  it  was  stiil  open  to  any 
amendment  not  incompatible  with  what  was  already 

adopted.  . 

Mr.  Pickering  offered  an  amendment  in  addition  ; 

and  not  incompatible  with  what  had  passed  ;  it  was  to 
insert  after  the  word  u  president”  in  the  27th  line  the 
following  words.  “  But.  if  within  24  hours  no  election  shall 
u  /iave  taken  place  then  the  president  shall  be  chosen  by 
law.”  This  amendment  he  offered  *  a  remedy  by 
which  we  could  avoid  that  civil  war  threatened  on  a 
former  occasion. 

Mr.  Adams  wished  the  motion  to  be  varied  so  as  to 
come  in  after  the  31st  line.  The  motion  he  considered 
as  embracing  an  object  extremely  important;  and  tho’ 
the  case  was  an  extreme  one,  of  no  election  being  made 
it  was  not  unprecedented,  for  it  had  very  recently  hap¬ 
pened  in  Jersey,  where  no  governor  had  existed  lor  a 
whole  year.  He  did  not  approve  of  the  precipitation 
with  which  the  senate  was  carrying  this  amendment 
forward ;  he  considered  it  as  intending  to  prevent  a  fe¬ 
deral  vice  president  being  chosen ;  he  hoped  that  the 
house  would  proceed  with  more  deliberation. 

Mr.  Pickering  consented  to  the  alteration  proposed 
by  his  colleague. 


(  65  ) 


Mr.  Tracy  thought  the  amendment  offered  by  the 
gentleman  from  Massachusetts  like  a  great  many  others, 
it  would  require  a  dozen  more  amendments  to  explain  it; 
How  was  the  choice  to  be  made  of  a  person  to  be  chosen 
bv  law  ? 

Mr.  Pickering.  The  states  might  chuse  by  lot  ; 
or  by  ballots  in  a  box,  which  the-president  might  col¬ 
lect  ;  or  a  number  of  names  might  be  put  in  a  box  from 
which  the  speaker  might  draw  one. 

Gen.  Smith  admired  the  ingenuity  of  gentlemen  ; 
as  they  left  ail  consideration  of  what  the  people  would 
wish  or  think  about  such  a  proceeding  out  of  the  question 
— suppose  they  were  to  throw  the  dice  for  the  executive 
chair  !  It  would  be  equally  wise  with  any  of  the  expedi¬ 
ents  offered,  the  gentlemen  could  serve  their  friends — 
the  candidates’  names  might  be  written— and  the  highest 
throw  have  it  !  !  ? 

Mr.  Tracy— however  gentlemen  mav  ridicule  the  ballot 
it  has  a  precedent,  by  the  constitution  of  Kentucky  it  is 
provided  that  when  two  candidates  are  equal  in  votes  the 
choice  shall  be  made  by  lot. 

Mr.  Brackenridce — -that  practice  has  been  long 
exploded. 

THURSDAY,  DEC.  1. 

Mr.  Hillhouse.  We  had  been  told  some  days  ago 
that  a  candidate,  proposed  to  be  chosen  by  law,  was 
near  having  his  head  cut  off ;  such  a  process  would  be 
rather  disagreeable  to  him  ;  he  wished  to  avoid  it  him¬ 
self,  and  to  prevent  others  getting  into  such  a  critical 
situation,  and  if  the  amendment  were  to  be  adopted,  he 
had  no  doubt  that  19  times  out  of  20,  the  choice  would 
devol  ve  on  the  house  of  representatives.  It  was  certain¬ 
ly  not  an  unusual  practice  in  elective  governments,  to 
choose  persons  for  eminent  stations  by  lot ;  it  was  very 
common  at  Athens  ;  and  they  were  a  very  wise  and 
prosperous  people,  and  had  an  orderly  and  well  regulated 
government.  It  would  certainly  be  a  preferable  mode 
to  the  choice  at  the  point  of  the  bayonet.  If  he  had'any 
conception  of  the  operation  of  the  proposed  amend¬ 
ment,  it  would  be  to  produce  no  election.  The  com¬ 
plex  mode  provided  by  the  constitution,  was  conceived 
in  great  wisdom  ;  it  was  necessary  when  the  country 
was  agitated  to  operate  as  a  check  upon  party,  and  irre¬ 
gular  passions.  Parties  will  always  have  their  cham¬ 
pions,  and  they  will  be  always  well  known  ;  to  attack 

I 


(  66  ) 


another  champion  is  to  restrain  the  passions  by  some  de¬ 
gree  of  uncertainty,  during  the  contest.  But  by  the 
new  amendment,  it  would  be  every  man  to  his  own  book , 
and  every  demagogue  would  be  a  leader  and  a  champion, 
and  in  the  contest  parties  would  be  divided  between 
the  two  principal  champions,  and  a  third  would  come  in 
and  win  the  race. 

If  every  man  were  to  act  correctly,  no  party  passions 
would  prevail  on  an  occasion  so  important ;  but  cair)  the 
champions  of  two  opposite  parties  to  the  house  of  repre¬ 
sentatives,  and  instead  of  voting  37  times  before  they 
decide,  as  on  the  last  occasion ;  they  will  vote  thirty 
hundred  times.  You  are  told  that  at  the  last  election 
one  was  intended  by  the  people  for  president,  and  the 
other  for  vice  president ;  but  the  constitution  knows  no 
vote  for  vice  president.  Alter  it  as  you  now  propose, 
and  let  two  candidates  be  equal,  and  then  you  will  be  told 
that  they  were  both  intended  for  president.  What  will 
be  the  consequence  ;  on  the  third  day  of  March,  neither 
party  will  give  out,  and  it  will  end  in  the  choice  oi  a 
third  man,  who  will  not  be  the  choice  of  the  people,  but 
one  who  will  by  artful  contrivances,  bring  himself  to 
that  place  with' the  sole  intention  of  getting  in  between 
them.  Choice  by  lot  would  certainly  be  better  than  this. 
Would  not  any  man  prefer  a  choice  by  lot,  rather  than 
such  a  course  as  it  would  break  up  the  constitution,  and 
leave  the  people  without  a  president  in  whom  they  would 

confide.  .  .  _  ,  .  .  . 

The  principle  of  the  constitution,  of  electing  by  elec¬ 
tors,  is  certainly  preferable  to  all  others.  One  of  the 
greatest  evils  that  can  happen  is  the  throwing  of  the  elec¬ 
tion  into  the  house  of  representatives.  There  Penn- 
sylvania,  Virginia,  Massachusetts  and  New  York  may 
combine;  they  may  say  to  the  other  states— we  will  not 
vote  for  your  man,  for  either  of  those  states  giving  their 
whole  votes  to  a  third  character  may  bring  him  in ;  we 
see  the  practice  daily  in  congressional  elections,  when 
both  parties  obstinately  adhere  to  their  candidate,  a 
third  is  set  up  and  carried  in  to  the  rejection  of  both. 
By  the  new  mode  proposed  every  man  will  have  an  in¬ 
terest  to  intrigue  for  himself  to  obtain  the  eminent  sta¬ 
tion.  Gentlemen  may  suppose  that  such  is  the  predo¬ 
minancy  of  their  party,  they  may  carry  in  any  president. 

But  no  party  pan  long  hold  an  ascendancy  in  power; 
they  will  ill  treat  each  other — or  some  of  them  will 


(  67  ) 


disagree,  and  from  the  fragments  new  parties  will  arise, 
who  will  gain  power,  and  forget  themselves,  and  again 
disagree  to  make  way  for  new  parties.  The  constitution 
was  "predicated  upon  the  existence  of  parties;  they  will 
always  exist,  and  names  will  not  be  wanting  to  rally 
under,  and  difference  of  interests  will  not  be  wanting  for 
pretexts— the  agricultural  will  be  arrayed  against  the 
the  mercantile— the  south  against  the  east — the  seaboard 
against  the  inland.  As  to  what  he  had  heard  about  cut¬ 
ting  off  heads,  he  supposed  that  could  not  have  been 
meant  as  a  threat ;  in  his  part  of  the  country  such  a 
crime  could  not  take  place  ;  the  gentleman  however, 
must  be  supposed  to  know  his  neighbours  better  than  he 
did,  but  he  could  not  suspect  such  danger  from  a  valliant 

^  Mr.  Pickering  said  the  amendment  he  had  offered 
was  suggested  to  him  by  the  alarming  picture  of  danger 
drawn  by  the  gentleman  from  Maryland.  He  thought 
the  dangers  indeed  exaggerated  ;  tho’  possibly  they 
might  not  be  ;  but  he  thought  it  proper  to  provide  how 
elections  should  be  conducted  and  to  determine  between 

tumult  or  civil  war  and  law. 

Gen.  Smith  did  say,  that  at  the  last  presidential 
election,  the  party  opposed  to  the  present  chief  magis¬ 
trate  did  contemplate  laying  aside  the  popular  choice 
and  electing  a  president  by  a  law  to  be  passed  for  the 
occasion  at  the  time ;  he  had  also  said  that  had  the 
measure  been  carried  into  effect,  the  person  whoever 
he  might  have  been  would  have  met  the  fate  of  anusurper- 
and  his  head  would  not  have  remained  on  his  shoulders 
24  hours. 

Mr.  Wright — it  had  been  said  that  we  meant  to 
precipitate  this  amendment  of  the  constitution — to  make 
the  minority  swallow  it ;  he  hoped  the  gentlemen  in  their 
eagerness  to  render  it  insipid  would  not  make  it  totally 
unpalatable  to  us,  as  they  had  proceeded,  the  modes 
which  they  had  proposed,  struck  him  at  least  by  their 
novelty — since  what  was  offered  was  not  satisfactory,  and 
they  were  willing  to  commit  it  to  chance,  why  did  they 
not  take  up  the  ancient  mode  of  grande  battaile ,  we  should 
have  no  objection  to  have  it  decided  by  the  champions 
of  both  parties  armed  with  tomahawks  !  Gentlemen  talk 
ofthe  danger  and  of  the  rights  of  the  small  states,  do  they 
expect  that  any  man  can  think  their  professions  serious, 
when  they  are  at  the  same  time  willing  to  commit  their 


c  68  )' 


rights  to  the  chance  of  a  lottery ;  the  rights  of  freemen 
are  not  to  oe  gambled  away,  or  committed  to  chance,  or 
sorcery,  or  witchcraft ;  we  look  to  reason  and  experience 
for  our  guides ;  we  seek  for  the  means  most  conducive 
to  the  general  happiness,  to  this  reason  conducts  us  ;  by 
experience  we  correct  wnat  may  have  escaped  our  sa¬ 
gacity  at  first,  or  may  have  been  found  defecti  ve  or  erro¬ 
neous  in  practice  ;  it  is  upon  these  principles  our  c  onsti¬ 
tution  is  founded,  it  is  for  these  words  that  the  provision 
is  made  in  the  constitution  itself  for  its  own  amendment  ; 
and  it  is  not  compatible  with  reason  or  with  the  princi¬ 
ples  of  the  constitution  to  commit  any  thing  to  capri¬ 
cious  fortune,  in  which  reason  and  human  rights  are 
concerned.  Gentlemen  charge  us  now  with  a  wish  to 
press  this  amendment  forward  with  precipitation,  what 
do  gentlemen  mean  by  this  ;  a  few  days  onjy  have  passed 
when  the  same  gentlemen  were  eager  for  an  immediate 
decision,  they  declared  their  readiness  t©  decide  imme- 
diately,  that  the  subject  was  as  well  understood  then  as 
ever  it  would  be,  and  that  we  delayed  the  decision  to  the 
exhaustion  of  their  patience  ;  the  subject  has  neverthe¬ 
less  undergone  a  long  discussion,  and  the  time  has  only 
served  to  prove  that  tne  gentlemen  were  at  first 
mistaken,  or  that  the  numerous  amendments  which  they 
have  brought  forward  have  their  origin  in  other  consid¬ 
erations. 

Mr.  Adams  had  declared  that  he  was  ready  to  give  his 
vote  upon  the  amendment  in  the  first  stage  ;  but  it  did 
not  therefore  follow  that  when  his  opinion  on  the  whole 
was  not  likely  to  prevail,  that  he  should  endeavour  to  ren- 
d  er  it  as  palatable  as  possible.  He  was  totally  adverse  to 
any  decision  by  lot,  and  agreed  perfectly  with  the  gentle¬ 
man  from  Maryland  that  it  was  not  a  mode  suited  to  the 
principles  of  our  government.  But  gentlemen  say  there 
is  a  defect,  and  wish  to  provide  a  remedy.  He  had  drawn 
up  an  amendment  which  Jhe  should  offer  to  the  house,  if 
that  of  his  colleague  should  not  be  approved.  He  con¬ 
fessed  he  did  approve  cf  the  designating  principle,  and  for 
one  among  other  reasons,  that  the  present  mode  is  too 
much  like  choice  by  lot.  For  instance,  A.  may  be  in¬ 
tended  by  a  large  majority  of  the  people  for  president,  and 
B.  as  vice-president ;  yet  the  votes  might  be  so  disposed, 
or  chance  might  operate  so  contrary  to  intention,  that  the 
votes  for  B.  should  exceed  by  a  vote  those  for  A.  This 
was  a  defect  in  the  constitution  ;  and  there  was  a  further 


C  69  ) 


reason  why  he  was  in  favor  of  the  designating  principle, 
and  that  was,  that  it  appeared  to  be  called  for  from  all 
parts  of  the  United  States.  It  was  very  true  as  had  been 
observed,  that  sometime  ago  the  opposers  of  the  amend¬ 
ment  did  press  for  a  decision ;  but  he  had  seen  those  dis¬ 
positions  prevail  alternately  ;  but  the  minority  had  not 
so  much  pressed  for  a  decision,  as  for  the  discussion  of  the 
question. 

Mr.  Pickering  suggested  his  wish  to  substitute  48 
hours  for  24,  in  his  amendment ;  and  if  the  election 
should  not  then  take  place,  a  choice  to  be  made  in  such 
manner  as  the  house  should  direct. 

The  question  on  Mr.  Pickering’s  motion  was  then 
put  and  negatived  without  a  division. 

Mr.  Adams  then  moved  tne  following  amendment. 
In  the  31st  line  after  the  word  “choice”  insert 

1  “And  in  case  the  house  of  representatives  shall  not  within . 

2  ays  en^ct  he  choice  in  manner  aforesaid,  ana  there  be  a  vice- 

3  president  dul  elec  ed,  .he  said  vice-p  resident  .shall  discharge  the 

4  powers  and  duties  of  the  president  of  ihe  U.  States.  Eu'c  if 

5  the  office  of  vice-president  be  also  vacant,  then  the  said  power, 

6  and  duties  of  president  of  the  Uni  ed  Srates,  shall  be  discharged 
7b_  such  personas  congress  may  b.  laW  direct ;  un.il  a  new  elec- 
8  tioli  shall  be  had  in  manner  already  prescribed  by  law,” 

Mr.  HillhousE  thought  that  there  should  be  provision 
made  for  the  choice  so  made  to  remain  only  until  such 
period  as  the  electors  could  be  called  again. 

Mr.  Dayton  hoped  the  gentlemen  did  not  mean  to 
lay  a  larger  patch  upon  the  constitution  than  the  hole 
they  make  in  it  required.  Had  gentlemen  considered 
that  when  there  is  a  vice  president,  that  in  the  case  of 
absence,  death  or  inability,  he  alone  dan  exercise  the 
powers  of  the  executive,  and  that  you  cannot  place  any 
person  over  his  head. 

Mr.  Adams — the  gentleman  is  certainly  right,  he 
had  offered  his  proposition  hastily.  The  observations 
which  arise  in  this  discussion  evidently  prove  that  we 
have  not  had  as  full  a  consideration  of  the  subject  as  it 
is  susceptible  of. 

Mr.  Wright — gentlemen  did  not  perceive  that 
the  house  of  representatives  are  constitutionally  bound 
and  impelled  to  chuse  when  it  devolves  upon  them  ; 
they  are  sworn  to  do  their  duty.  The  amendments  offer¬ 
ed  are  wholly  founded  on  the  presumed  corruption  ofthe 
house  of  representatives.  You  may  as  well  make  pro¬ 
visions  against  the  corruption  of  a  jury. 


(  70  ) 


Ms.  Hillhoxjse — there  is  another  point  which  gen¬ 
tlemen  appear  not  to  have  taken  into  view,  how  the  ob¬ 
jections  of  their  oaths  are  to  operate  or  be  enforced, 
when  the  functions  themselves  expire  on  the  3d  of 
March.  There  is  another  view  of  the  subject,  which 
ought  not  to  be  passed  over.  The  members  are  sworn 
to  be  sure,  but  one  half  of  the  house  may  sincerely  be¬ 
lieve  that  A.  is  the  popular  choice  ;  while  the  other 
half  may  as  sincerely  believe,  that  the  wishes  of  the  ma¬ 
jority  are  with  B.  and  how  are  we  to  compel  them  by 
moral  obligations,  when  the  obligation  rests  wholly  on  the 
consciences  of  the  individuals.  1  he  true  principle 
then  would  be  to  make  provision  for  the  appointment  of  a 
person  who  should  carry  on  the  functions  of  government 
till  the  electors  may  again  meet  and  choose  a  president. 
A  provision  vesting  in  the  senate  the  right  ol  choice 
even  for  one  year,  may  be  a  motive  for  the  other  house 
to  perform  their  duty  promptly .  It  was  not  pleasant  to 
riiacuss  some  topics,  but  we  must  discuss  them,  if  we 
mean  to  avoid  evil.  We  must  suppose  the  existence  of- 
faction,  of  party,  and  even  corruption,  for  we  know  that 
evil  passions  do  and  will  exist,  and  that  by  discussing  we 
guard  against  them.  An  house  of  representatives  elec¬ 
ted  two  years  before  your  presidential  election,  may  hold 
sentiments  very  different  from  him  ;  the  public  mind 
may  change  in  the  time  ;  and  a  party  losing  power  may 
be  led  away  by  passion  to  conspire  and  throw  every  dif¬ 
ficulty  in  the  way. 

Mr.  Bradley  thought  the  sentiments  cf  the  gen¬ 
tleman  last  up  perfectly  correct.  Ke  was  satisfied  that 
if  the  house  made  no  choice  the  vice  president  would 

administer  the  government 

Mr.  Wright  said  that  although  the  functions  of  tue^ 
house  of  representatives  would  expire  with  the  od  of 
March,  yet  there  was  assuredly  time  enough  between 
the  2d  Wednesday  in  February,  and  the  3d  of  March  to 
make  a  proper  choice  ;  nothing  but  obstinacy  or  worse 
would  prevent  an  election  ;  he  would  shut  them  up  like 
a  jury  until  they  had  made  a  choice  ;  he  could  not  con¬ 
ceive  a  case  wherein,  any  number  of  men  in  congress 
would  dare  to  set  themselves  up  against  the  country, 
and  put  its  happiness  and  their  own  lives  at  hazaru,  in 
such  a  way  as -the  gentleman  supposed. 

Oen.  Smith.  The  gentleman  from  Massachusetts, 
(Mr.  Adams)  appears  not  to  be  perfectly  satisfied  with  his 


(  71  ) 


own  amendment ;  and  certainly  the  gentleman  from 
Connecticut  had  shewn  that  the  amendment  was  defec¬ 
tive  ;  the  candor  of  that  gentleman  he  must  acknowiege, 
he  had  taken  the  strongest  hold  possible  of  the  subject ; 
he  had  laid  the  fruits  of  experience  before  you,  and  point¬ 
ed  out  the  weakness  which  you  had  to  protect.  He 
would  recommend  it  to  the  gentleman  from  Massachu¬ 
setts  to  alter  his  amendment,  so  as  to  make  it,  that  in  case 
the  house  should  fail  to  chuse,  then  in  four  days  after  the 
vice-president  shall  be  president. 

Mr.  Adams  saw  a  new  difficulty  there  also  ;  for  there 
may  not  be  a  majority  for  both ;  and  provision  will  be  ne¬ 
cessary  for  the  vacancy  of  the  vice-presidency. 

Mr.  Hillhouse  thought  there  would  be  no  danger  of 
the  senate  omitting  to  elect  their  president,  who  is  on  a 
vacancy  the  vice-president  in  fact.  As  to  shutting  the 
house  up  like  a  jury  in  a  dark  room,  depriving  them  ol 
fire,  light  and  food,  he  thought  the  measure  too  strong  ; 
he  did  not  wish  to  see  them  at  the  mercy  of  a  sheriff,  who 
upon  their  laches  might  call  in  the  jiosse  committatus ,  and 
trundle  them  out  of  the  district,  or  send  them  to  Coven¬ 
try.  If  the  house  of  representatives  should  not  make  a 
choice,  he  saw  no  reason  why  the  government  should  not 
go  on,  until  an  election  should  take  place. 

Mr.  Cocke  was  astonished  to  see  gentlemen  going 
over  so  much  unnecessary  ground.  Could  they  suppose 
the  people  so  indifferent  to  their  own  rights  as  not  to 
make  an  election  ?  Or  do  gentlemen  mean  all  these 
cavall'ings  for  amusement,  to  display  their  ingenuity  at 
finding  fault.  If  there  should  be  any  failure  of  choice, 
why  could  not  the  secretary  of  state  arrange  and  carry 
on  the  executive  business  until  an  election  should  again 
take  place  ?  Mr.  Tracy  rose.... 

Mr.  Cocke  called  for  the  question — the  question. 

Mr.  Tracy — does  the  gentleman  mean  to  call  for  the 
question  while  I  am  on  the  floor — I  will  not  sit  down 
upon  such  a  call — what  is  the  question  sir  ? 

Mr.  Dayton  hoped  the  gentleman  from  Massachu¬ 
setts  (Mr.  Adams)  would  withdraw  his  amendment. 

Mr.  Adams  thought  the  deliberation  of  one  or  two 
hours  could  not  be  thrown  away. 

Mr.  Wright  hoped  the  decision  on  the  amendment 
would  not  be  pressed  upon  the  house.  What!  is  it 
proposed  to  take  the  choice  of  president  out  ol  the  hands 
of  the  electors,  and  place  it  wholly  in  the  house  ol  re- 


(  72  ) 


presentatives  and  tell  them,  hold  out  only  four  days,  and 
you  will  then  have  the  whole  power  in  your  hands,  you 
mav  set  aside  ail  consideration  for  the  wishes  of  your 
constituents,  set  popular  opinion  at  defiance,  and  please 
yourselves  by  cruising  a  president  of  whom  the  popple 
never  thought.  Gentlemen  should  avoid  this  dangerous 
path  which  they  wish  to  prepare,  the  people  will  not 
bear  to  be  frowned  upon  by  those  whom  their  breath  has 
made  and  can  unmake.  1  .  ■  : 

Sir,  it  is  our  wish  to  prevent  all  these  dangerous  or  fatal 
courses  and  consequences— and  we  should  keep  in 
mind,  that  whatever  we  may  conclude  upon  here,  is 
completely  guarded  not  alone  by  the  necessary  consent 
of  the  other  house,  but  that  of  three-fourths  of  the  states 
The  constitution,  sir,  would  be  preferable  as  it  is  without, 
the  odious  and  anti-republican  forms  which  gentlemen 
propose  to  engross  upon  it — What  sir,  determine  a 
most  important  principle  of  effective  government  by  a 
non-effective  act — determine  an  election  by  holding  out 
a  temptation  to  non-election  !  He  should  prefer,  having 
the  choice  open  to  the  representatives  bound  by  oath, 
by  duty,  and  by  the  constisution,  to  such  an  alternative  \ 
if  men  so  placed  would  be  so  blind  to  the  calls  of  duty, 
the  public  indignation  would  bring  them  to  their  senses 
before  the  4th  of  March.  Honor  and  their  oaths,  sir, 
would  bind  them  ;  he  had  too  much  confidence  in  the 
choice  of  his  countrymen,  and  of  the  virtue  and  morality 
of  those  who  are  sent  to  the  important  stations  of  repre¬ 
sentatives,  to  think  they  disregard  their  oaths  or  their 
duty.  Some  gentlemen  tell  us  indeed  they  know  of 
no  persons  who  would  raise  their  hands  against  an 
usurper,  if  he  had  been  set  up,  and  insinuate  that  it 
would  be  a  crime  ;  but  they  find  ready  belief  for  acts 
ten  thousand  degrees  more  base  and  heinous  in  them¬ 
selves  \  they  can  believe  their  countrymen  capable  of 
the  breach  of  every  tie  of  honor,  of  oaths  and  of  duty  ; 
gentlemen  must  speak  from  their  own  know lege  ;  for 
his  part  he  was  happy  to  say  there  were  no  such  men 
among  his  acquaintance  nor  in  his  neighbourhood.  . 

The  arguments  which  gentlemen  draw  from  their  ex¬ 
perience,  would  be  with  him  powerful  ones  for  opposing 
the  measure  which  they  are  brought  forth  to  sustain. — 
For  if  men  elected  to  sucli  stations  as  seats  in  congress 
are  capable  of  the  breach  of  every  obligation  of  honor 
and  oath,  the  greatest  care  should  be  taken  to  keep  the 


(  73  ) 


power  of  election  forever  out  of  their  hands,  by  render¬ 
ing-  it  impossible  for  the  people  not  to  elect ;  nay  he  would 
prefer  carrying  the  election  to  the  individual  vote  of  every 
citizen,  without  the  intervention  of  electors,  to  suffering 
it  to  go  into  any  body  liable  to  such  dishonor. 

An  observation  of  the  gentleman  from  Massachusetts 
(Mr.  Adams)  produced  a  sensation  which  at  once  shewed 
that  something  besides  the  care  of  the  people’s  rights 
had  an  influence  here  ;  he  proposes  that  the  proper  offi¬ 
cer,  the  vice  president,  should  succeed  to  the  presiden¬ 
tial  chair  upon  a  failure  of  election  or  vacancy  after  a  few- 
short  months ;  whence  arose  the  agitation  and  interest 
excited  by  this  proposition  ? — is  it  because  we  wish  not 
to  see  a  man  seated  in  the  executive  chair  whom  the 
people  never  contemplated  to  place  there,  and  who  never 
had  a  vote. 

Mr.  Dayton — You  are  about  to  designate  who  shall 
be  president  and  who  vice  president ;  and  some  gentle¬ 
men  have  gone  so  far  as  to  favor  the  choice  of  one  who 
had  not  even  a  vote  for  either  office,  The  gentleman 
from  Massachusetts  (Mr.  Adams)  indeed  professes  to 
have  in  view  the  succession  of  the  vice  president  to  the 
executive  chair  when  vacant.  But  gentlemen  should 
perceive  that  if  you  designate,  the  principle  will  be 
totally  changed.  He  could  not  assent  to  the  conclusion 
of  some  gentlemen  on  another  point,  if  any  thing  could 
be  understood  from  the  constitution  more  clearly  than 
another,  it  was  that  the  voces  are  given  to  two  persons 
for  president,  and  that,  as  has  been  observed  before, 
the  constitution  never  notices  a  vote  for  the  office  of 
vice  president.  How  then  can  it  be  said  which  was  the 
person  intended  ?  The  gentleman  from  Maryland  (Mr, 
Wright)  had  said,  that  one  of  the  candidates  at  the  late 
election  had  not  a  single  vote  for  president,  while  the 
official  returns  shew,  that  each  and  every  vote  was  the 
same  for  both  candidates  as  president. 

Mr.  Taylor — that  matter  appears  susceptible  of  a 
very  simple  explanation ;  there  can  be  no  question  that 
hi  form,  the  votes  for  each  candidate  were  equal ;  but 
that  is  not  the  question,  the  quo  unimo  must  be  taken  into 
view ;  would  any  gentleman  say  that  no  preference  was 
intended.  It  is  very  true  that  such  was  the  form,  but 
looking  to  the  well  known  intention,  have  you  not  in  the 
very  fact  stated  an  evidence  that  the  principle  of  designa- 


(  74  ) 


tion  is  essential,  were  it  omy  to  pre^  ent  the  consumma¬ 
tion  of  an  act  never  contemplated  or  expected. 

Mr.  Dayton  was  for  a  postponement  of  the  amendment. 

Gen.  Jackson  was  for  postponement  also. 

Mr.  Adams’s  amendment  was  postponed  and  ordered 

to  be  printed. 

Mr.  Taylor  wished  to  offer  an  amendment  as  an  ad¬ 
dition  to  the  report — • 

u  Provided,  that  whenever  the  right  of  choosing  a  pre¬ 
sident  shall  devolve  upon  the  house  of  representatives,  the 
vice  president  shall  act  as  president,  in  case  they  fail  to 
make  such  choice,  in  like  manner  as  in  case  of  the  death 
or  resignation  of  the  president.” 

It  was  moved  that  this,  with  the  other  amendment,  be 
printed — and  the  house  adjourned. 

DECEMBER  2. 

The  order  of  the  day  being  the  amendment  proposed 
in  the  house  of  representatives,  to  be  made  to  the  con¬ 
stitution  of  the  United  States,  and  the  report  of  the  com¬ 
mittee  being  under  consideration. 

Mr.  Taylor  of  Virginia,  desired  to  withdraw  his 
motion  of  the  preceding  day,  in  order  to  accommodate 
the  terms  of  his  proposition  to  the  wishes  of  gentlemen. 
His  only  object  was  to  obtain  the  principle,  and  provided 
that  was  obtained  in  such  a  manner  as  to  promise  an  ac¬ 
complishment  of  the  good  intended  thereby,  he  should 
consider  the  words  in  which  the  provision  was  to  be 
couched  of  inferior  moment ;  in  lieu  of  the  addition 
which  he  offered  before,  he  now  proposed  to  insert  after 
the  word  choose  in  the  32d  line  the  following  words 
u  and  if  the  house  of  representatives  shall  not  choose  a 
u  president  whenever  the  right  of  choice  shall  devolve 
u  Upon  them,  before  the  4th  day  of  March  next  follow- 
“  ing,  then  the  vice  president  shall  act  as  president,  as 
“  in  case  of  the  death  or  other  constitutional  disability 
“  of  the  president.” 

Mr.  Adams  had  no  sort  of  objection  to  this  addition 
to  the  paragraph;  it  reached  his  ideas  as  far  as  it  tvent; 
but  he  conceived  that  though  this  made  a  very  necessa¬ 
ry  provision  for  the  case  of  the  president,  it  did  not  go 
far  enough,  inasmuch  as  no  provision  was  made  in  case 
there  should  be  no  vice  president.  He  would  submit 
this  case  to  gentlemen,  that  if  there  vras  no  vice  presi¬ 
dent  existing  nor  any  more  than  a  president  chosen,  in 
the  event  of  a  high  state  of  party  spirit,  would  it  be  dif- 


(  75  ) 


ficult  to  foresee,  that  there  would  be  much  room  left  for 
contention  and  evil  ;  unless  provision  should  be  made 
against  the  contingency,  therefore,  the  amendment  would 
be  imperfect,  in  his  mind;  like  the  gentleman  from  Vir¬ 
ginia,  he  was  not  tied  to  words,  but  he  thought  it  worth 
while  to  employ  two  lilies  to  provide  against  the  danger. 

Mr.  Hillhouse  concurred  in  the  amendment  of  the 
gentleman  from  Virginia,  but  he  hoped  the  idea  of  the 
gentleman  from  Massachusetts  would  also  he  adopted. 

Mr.  Pickering  objected  to  the  length  of  time  allow¬ 
ed  for  the  house  of  representatives  to  decide.  We  have 
been  told  that  the  small  states  from  their  smaller  num¬ 
ber  of  votes  are  exposed  to  corruption ;  he  wished  no 
time  to  be  left  for  corruption  to  operate,  and  he  therefore 
desired  that  the  period  for  the  house  of  representatives  to 
decide  should  be  limited  to  forty-eight  hours  or  three 
days. 

Mr.  Wright  approved  of  the  amendment  that  had 
been  offered  in  all  its  parts  ;  and  the  more  so  as  it  in 
effect  supplies  a  deficiency  which  exists  in  the  constitu¬ 
tion  even  as  it  now  stands. 

The  amendment  was  agreed  to  22  being  in  the  affir¬ 
mative. 

Mr.  Adams  offered  another  amendment  of  the  follow¬ 
ing  effect,  to  be  added  to  the  provision  concerning  the 
election  of  vice  president — “and  if  there  shall  be  no  vice 
“  president  duly  elected  within  ten  days  after  the  4th  of 
“  March,  then  the  power  and  duties  of  the  president  of 
“  the  United  States  shall  be  discharged  by  such  person 
“  as  shall  be  by  law  invested  with  that  power,  until  such 
“  time  as  a  new  election  by  electors  shall  take  place.” 

Mr.  Tracy  wished  to  know  why  ten  days  was  the 
period  fixed  ? 

Mr.  Adams — because  the  amendment  proposed  gives 
the  house  of  representatives  until  the  4th  of  March,  du¬ 
ring  which  time  the  old  vice  president  continues  in 
office  ;  and  ten  days  appeared  to  him  a  reasonable  pe¬ 
riod  ;  but  he  was  not  tied  to  any  particular  number  of 
days. 

Mr.  Tracy'  would  prefer  the  word  vacant  suggested 
Yesterday,  to  the  not  duly  elected. 

Mr.  H  ill  house  was  not  disposed  to  concur  with  the 
proposed  amendment;  he  did  not  think  a  period  of  agi¬ 
tation  a  proper  one  to  make  choice  of  an  officer  of  so 
much  power;  he  would  prefer  making  provision  by  law 


! 


(  76  ) 


before  the  happening  of  .  the  event ;  for  in  a  high  state  of 
party,  he  coukl  see  no  likelihood  of  an  agreement,  and 
out  of  disagreement  confusion  might  arise.  His  wish 
was  to  have  some  person  designated  who  should  dis¬ 
charge  the  executive  duties  until  an  election  should  take 
place ;  and  that  this  officer  should  be  previously  fixed 
upon,  so  that  party  spirit  should  have  no  room  for  agi¬ 
tation. 

Gen.  Jackson  could. not  discern  the  necessity  of  the 
proposition  now  offered  ;  the  case  proposed  to  be  proyided 
against,  he  thought  so  extreme  as  likely  never  to  hap¬ 
pen.  Besides  the  mover  appeared  not  to  have  taken  it 
into  consideration  that  one  third  of  the  senate  go  out  at 
the  close  of  the  second  session  of  every  congress  by 
rotation,  and  would  he  have  only  two  thirds  to  make  the 
law  which  was  to  provide  for  this  choice.  Upon  the 
principle  of  the  general  amendment,  he  had  not  at  first 
made  up  his  convictions,  but  the  amendment  adopted 
had  removed  his  doubts,  and  he  thought  this  addition  to 
the  amendment  unnecessary.  He  hoped  the  senate 
would  abide  by  that  they  had  already  agreed  to,  and 
preserve  the  right  of  choice  to  the  people. 

Mr.  Wright — there  was  another  difficulty  which 
the  gentleman  from  Massachusetts  appears  not  to  have 
foreseen.  To  make  a  law  it  is  not  enough  that  the  Se¬ 
nate  are  present  even  if  complete  ;  the  house  of  repre¬ 
sentatives  is  necessary  to  an  act  of  legislation,  and  that 
body  can  have  no  existence  after  the  4th  day  of  March, 
nor  within  the  ten  days  suggested,  for  they  could  not 
if  all  elected,  be  called  even  by  proclamation  within 
that  time  ;  and  further  if  there  should  ben©  election  of 
president,  there  would  be  no  power  to  convene  congress 
—so  that  the  proposed  addition  is  improper  altogether. 

Mr.  Adams  did  not  feel  extremely  solicitous  for  the 
proposition  ;  when  the  constitution  is  proposed  to  be 
amended,  however,  he  was  disposed  to  offer  every  sug¬ 
gestion  which  might  appear  to  him  calculated  to  render 
it  more  perfect.  The  objections  offered  by  the  gentle¬ 
man  from  Georgia,  high  as  he  respected  his  opinion, .did 
not  appear  to  him  conclusive  ;  for  his  calculations  of 
time  and  circumstance  do  not  entirely  correspond  with 
experience  past ;  the  president  has  at  all  times  hereto¬ 
fore  been  inaugurated,  after  the  house  of  representa¬ 
tives  had  closed  its  session  by  limitation,  and  the  senate 
had  been  uniformly  assembled  for  the  purpose  of  the  m- 


(  77  ) 


augu ration.  Here  then  is  a  body  in  session,  and  if 
there  shall  not  be  a  vice  president  chosen,  they  can  and 
must  proceed  to  choose  one,  and  that  choice  would  of 
course  fall  as  proposed,  upon  one  of  the  candidates. — 
The  gentleman  from  Connecticut,  (Mr.  Hillhouse)  had 
mistaken  his  view,  concerning  the  choice  of  a  person  by 
law ;  his  intention  certainly  wras  to  provide  for  the  future 
contingency  by  a  previous  law. 

Gen.  Jackson  still  conceived  the  gentleman’s  propo¬ 
sition  founded  in  mistake  ;  for  it  would  be  impracticable 
for  the  senate  to  act,  since  according  to  the  rules  of 
the  senate  two  thirds  of  the  whole  are  necessary  to  form 
a  quorum  ;  one  third  must  constitutionally  go  out  of 
that  body  at  the  time,  and  the  absence  of  a  single 
member  would  disable  the  senate  from  business. 

Mr.  Adams — there  would  remain  still  two  thirds  of 
the  senate,  and  it  would  be  the  duty  of  the  executive 
to  call  them  together,  as  had  been  done  in  some  cases  ; 
and  as  to  the  deduction  of  the  third  by  rotation  ;  there 
are  several  of  the  small  states  that  elected  their  senators 
several  months  before  the  period.  To  argue  that  they 
would  neglect  it  would  be  to  argue  that  the  states  are 
indifferent  to  their  representation  on  this  floor. 

Gen.  Jackson— we  know  that  vacancies  do  occur 
from  other  causes  than  indifference  or  neglect  of  states  ; 
we  know  that  at  this  moment  New  York  has  but  one 
representative  on  this  floor — and  that  Jersey  had  but 
very  lately  been  so  much  embarrased  by  a  faction  as  to 
leave  her  for  sometime  w  ithout  more  than  one  senator. 

The  question  on  the  amendment  of  Mr.  Adams  was 
then  put  and  lost  without  a  division. 

Mr.  Pickering,  The  case  which  the  gentleman 
from  Georgia  founded  his  arguments  upon  applies  to  a 
non-election ,  and  thought  such  a  case  an  extreme  one  ; 
he  thought  differently,  and  the  constitution  as  it  now 
stands  has  made  a  provision  for  such  an  exigency. — 
Some  provision  should  be  made  for  such  a  case,  he 
would  therefore  move  an  amendment,  which  would 
provide  for  the  event  of  a  wow-election — to  insert  after 
the  words  president :  “  But  if  on  the  4th  of  March 

“  the  office  ol  vice  president  shall  be  vacant,  then  the 
A‘  powers  which  devolve  by  the  constitution  on  the  vice 
u  president,  shall  be  exercised  by  such  persons  as  the 
“  law  shall  direct  until  a  new  election.” 

Mr.  Hillhouse.  This  amendment  would  supply 
«I1  that  was  proposed  by  the  allowance  of  ten  days  in  a 


(  78  ) 


Former  amendment,  and  it  seemed  to  him  indispensable, 
localise  as  the  non-election  of  both  president  and  vice 
president  may  happen,  there  should  be  some  organ  to 
keep  the  wheels  of  government  in  motion.  It  appeared 
to  him  to  be  as  necessary  to  provide  for  this  contingency 
as  for  that  of  the  death  of  the  president  or  vice  presi¬ 
dent. 

The  amendment  was  lost  without  a  division. 

The  main  question  of  the  whole  resolution  then  re¬ 
curring. 

Mr.  White,  of  Delaware— Mr.  President  :  It 
may  be  expected  that  we,  who  oppose  the  present  mea¬ 
sure,  and  especially  those  of  us  who  belong  to  the  smaller 
states,  and  who  think  the  interests  of  those  states  will 
be  most  injuriously  affected  by  its  adoption,  shall  assign 
some  reasons  for  our  opinion,  and  for  the  resistance  we  give 
it — I  will  for  myself  endeavor  to  do  so.  I  know  well 
the  prejudices  of  many  in  favor  ol  this  proposed  amend¬ 
ment  to  the  constitution — I  know  too  and  acknowledge 
with  pleasure,  the  weight  of  abilities  on  the  other 
side  of  the  house  by  which  those  prejudices,  if  I 
may  so  be  permitted  to  call  them,  will  be  sustained— 
this  might  perhaps  be  sufficient  to  create  embarrassment 
or  even  silence  on  my  part,  but  lor  the  consciousness  I 
feel  m  the  rectitude  of  my  views,  and  my  full  reliance 
on  the  talents  of  those  with  whom  I  have  the  honor  gen¬ 
erally  to  think  and  act.  Upon  a  subject  oi  tne  nature 
and  importance  of  the  one  before  us  ci  great  diversity  of 
sentiment  must  be  expected,  and  is  perhaps  necessary 
to  the  due  and  proper  investigation  ol  it.  V  ithout  de¬ 
taining  the  senate  with  further  preliminary  remarks, 
presuming  upon  that  patience  and  polite  indulgence  that 
are  at  ail  times  extended  by  this  honorable  body  to  gen¬ 
tlemen  who  claim  their  attention,  I  will  proceed  imme¬ 
diately  to  the  subject  of  the  resolution — barely  premising 
that  notwithstanding  the  opinions  of  the  gentleman  from 
Virginia  (Mr.  Taylor)  and  the  gentleman  from  Georgia 
(Gen.  Jackson)  whose  opinions  I  highly  respect,  I  must 
vet  think  with  my  honourable  friend  from  Jersey  (Mr. 
Dayton)  that  the  constitution  of  the  United  States  bears 
upon  the  face  of  it  the  strongest  marks  of  its  hav  ing 
been  made  under  the  influence  of  state  classifications, 
—it  was  a  work  of  compromise,  though  not  form¬ 
ed,  as  stated  by  the  gentleman  from  Virginia,  by  the 
large  states  yielding  most,  but  by  the  smaller  states 


) 


(  79  ) 

yielding'  much  more  to  the  general  good.  It  will 
be  recollected  that  previous  to  the  adoption  of  the  consti¬ 
tution  on  all  legislative  subjects,  in  fact  on  every  measure 
of  the  constitution,  each  state  had  an  equal  voice ;  but 
very  different  is  the  case  now  when  in  the  popular  branch 
of  your  government,  you  see  one  state  represented  by 
twenty  two  members,  and  another  by  but  one,  voting  ac¬ 
cording  to  numbers.  So  that  notwithstanding  the  ideas 
of  those  gentlemen,  and  the  declaration  of  an  honorable 
member  from  Maryland  on  my  right  (Gen.  Smith)  that 
during  his  ten  years  service  in  congress,  he  had  never 
seen  any  thing  like  state  jealousies,  state  divisions  or  state 
classification,  I  must  be  permitted  to  predicate  part  of  my 
argument  upon  this  business.  Should  any  gentleman  be  abie 
to  shew  that  the  foundation  is  unsound,  the  superstructure 
of  course  will  be  easily  demolished.  Admitting  then,  sir, 
for  the  sake  of  argument,  that  there  were  no  very  great 
objections  to  this  proposed  alteration  in  the  mode  of  elec¬ 
ting  a  president  and  vice  president,  and  that  it  were  now 
part  of  the  constitution,  it  might  be  unwise  to  strike  it  out ; 
unless  much  stronger  arguments  had  been  urged  against 
than  I  have  heard  in  favor  of  it,  yet  I  would  not  now 
vote  for  its  adoption.  What  appears  specious  in  theory 
may  prove  very  inconvenient  and  embarrassing  in  prac¬ 
tice,  and  my  objections  go  to  any  alteration  of  the  cons¬ 
titution  at  this  time  ;  we  have  not  given  it  a  fair  experi¬ 
ment,  and  it  augurs  not  well  to  the  peace  8c  happiness  ofthe 
United  States  to  see  so  much  increasing  discontent  upon 
this  subject,  so  many  projected  alterations  to  the  great  char¬ 
ter  of  our  union  and  our  liberties  ;  not  less  than  four  are 
now  upon  our  tables,  and  which  if  adopted  will  materi¬ 
ally  change  the  most  valuable  features  of  the  constitution. 
The  first  alters  the  mode  of  electing  the  president  and 
vice  president — the  second  changes  the  ground  upon 
which  the  vice  president  is  to  be  appointed  by  the  senate, 
in  case  one  is  not  ele  tecl  by  the  electors  according  to 
the  constitution — tne  third  extends  the  powers  of  the 
senate  in  the  choice  of  this  latter  officer  beyond  what  was 
ever  contemplated  by  the  people  ot  this  country — and 
the  fourth  which  is  not  now  immediately  before  us,  goes 
to  incapacitate  any  citizen  from  being  eligible  to  the 
office  of  president  more  than  a  certain  number  of  years. 
All  these  important  changes  we  are  about  tc.  introduce 
into  the  constitution  at  once,  and  indeed,  were  attempted 
to  be  forced  into  a  final  vote  upon  them,  in  little  more 


/ 


(  80  ) 


than  the  space  of  one  day  from  the  moment  they  tvere 
submitted  to  us.  Are  we  aware  of  what  we  are  about  ? 
Is  this  the  way  in  which  the  constitution  was  formed  ? 
Was  it  put  together  with  as  much  facility  and  as  little 
reflection  as  we  are  tearing  it  to  pieces  ?  No,  Mr.  Pre¬ 
sident,  it  was  constructed  after  much  thought,  after  long 
and  mature  deliberation,  by  the  collected  wisdom  and 
patriotism  of  America,^  by  such  a  set  ol  men  as  I  fear 
this  country  will  never  again  see  assembled  ;  and  we 
should  be  cautious  how  we  touch  it.  The  fewer  changes 
we  make  in  it,  the  longer  it  remains — the  older  it  grows 
the  higher  veneration  will  every  American  entertain  for 

_ the  man  born  to  its  blessings  will  respect  it  more 

than  him  who  saw  jts  birth ;  he  will  regard  it  not  only  as 
the  great  bulwark  of  his  liberties  but  as  the  price  ot  the 
blood  of  his  ancestors — as  a  sacred  legacy  from  his  father, 
deoosited  with  him  for  the  benefit  of  himself,  and  in  trust 
for  his  posterity.  But  if  in  this  wav  every  succeed¬ 
ing  congress,  every  party  enjoying  the  short  lived 
triumph  of  a  day,  shall  be  mutilating  it  with  alterations 
from  whatever  motives,  either  to  thwart  their  political 
opponents,  or  to  answer  particular  purposes,  ere  long  no 
trace  of  the  original  instrument  will  remain,  it  will  be 
kept  in  a  state  of  tottering  infancy,  until  some  Gallic 
Caesar,  turning  to  his  advantage  an  unhappy  moment  of 
popular  phrenzy  may  make  the  last  change,  by  trampling 
upon  its  ruins,  and  substituting  the  strong  arm  of  power 
in  its  place. 

What  sir,  let  me  ask,  are  the  objects  of  these  propo¬ 
sed  amendments  ?  The  first  we  are  told  will  so  mark, 
so  designate  the  man  to  be  president  as  to  close  forever 
doors  upon  that  subject  !  coulci  tms  be  tne  e±i^*-i.,  LuC 
adoption  of  it  would  indeed  be  wise  and  provided,  but 
-  I  fear  a  directly  contrary  tendency,  that  it  will  open  a 

new  and  an  immense  field  for  intrigue. - The  United 

States  are  now  divided,  and  will  probably  continue  so, 
into  two  great  political  parties — whenever,  under  this 
amendment,  a  presidential  election  shall  come  round, 
and  the  four  rival  candidates  be  proposed,  two  of  them 
only  will  be  voted  for  as  president,  one  of  these  two  must 
be  the  man  ;  the  chances  in  favor  of  each  will  be  equal. 
Will  not  this  increased  probability  of  success,  afford 
more  than  double  the  inducement  to  those  candidates, 
and  their  friends,  to  tamper  with  the  electors,  to  exercise 
intrigue,  bribery  and  corruption  as  in  an  election  upon 


(  81  ) 


the  present  plan,  where  the  whole  four  would  be  voted 
for  alike,  where  the  chances  against  each  are  as  three  to 
one,  and  it  is  totally  uncertain  which  of  the  gentlemen 
may  succeed  to  the  high  office  ?  And  there  must  indeed 
be  a  great  scarcity  of  character  in  the  United  States, 
when  in  so  extensive  and  populous  a  country,  four  citi¬ 
zens  cannot  be  found  either  of  them  worthy  even  of  the 
chief  magistracy  of  the  nation.  But  Mr.  President,  I 
have  never  yet  seen  the  great  inconvenience  that  has 
been  so  much  clamored  about*  and  that  will  be  futurely 
provided  against  by  substituting  this  amendment.  There 
was  indeed  a  time  when  it  became  necessary  for  the 
house  of  representatives  to  elect  by  ballot  a  presi¬ 
dent  of  the  United  States  from  the  two  highest  in  vote, 
and  they  were  engaged  here  some  days,  as  I  have  been 
told  in  a  very  good  humored  way,  in  the  exercise  of 
that  constitutional  right,  they  at  length  decided — •  and 
what  was  the  consequence  ?  The  people  were  satisfied, 
and  here  the  thing  ended.  What  does  this  prove,  that 
the  constitution  is  defective  ?  No  sir,  but  rather  the  wis¬ 
dom  and  efficiency  of  the  very  provision  intended  to  be 
stricken  out;  and  that  the  people  are  acquainted  with  the 
nature  of  their  government — and  give  me  leave  to  say 
if  fortune  had  smiled  upon  another  man,  and  that  election 
had  eventuated  in  another  way,  the  consequence  would 
’nave  been  precisely  the  same ;  the  great  mas*;  of  the 
people  would  have  been  content  and  quiet;  and  those 
factions  restless  disorganizes,  that  are  the  eternal  dis¬ 
turbers  of  all  well  administered  governments  and  Avho 
then  talked  of  resistance,  would  have  had  too  much  pru¬ 
dence  to  hazard  their  necks  in  so  dangerous  an  enter¬ 
prise.  I  will  not  undertake  to  say  that  there  was  no 
danger  apprehended  on  that  occasion.  I  know  many  of 
the  friends  of  the  constitution  had  their  fears,  the  experi¬ 
ment  no  vvever  proved  them  groundless;  but  what  was 
the  danger  apprehended,  pending  the  election  in  the 
house  of  representatives?  Was  it  that  they  might  choose 
Colonel  Burr  or  Mr.  Jefferson  president?  Not  at  all — > 
they  had,  notwithstanding  what  had  been  said  on  this 
subject  by  the  gentleman  from  Maryland  (Mr.  Wright) 
a  clear  constitutional  right  to  choose  either  of  them,  as 
much  so  as  the  electors  in  the  several  state  had  to  vote 
for  them  in  the  first  instance— the  particular  man  was  a 
consideration  of  but  secondary  importance  to  the  country  ; 
the  only  ground  of  alarm  was  lest  the  house  should  separate 

L 


(  82  ) 

Without  making  any  choice  and  the  government  be  without 
a  head,  the  consequences  of  which  no  man  could  we h  cal¬ 
culate.  The  present  attempt,  to  say  the  least  of  it,  as  has 
been  well  observed  by  my  honourable  friend  from  Jersey, 
(Mr.  Dayton)  is  taking  advantages  of  a  casualty  to  alter  the 
constitution  that  astonished  every  one  when  it  happened, 
and  that  no  man  can  imagine  in  the  ordinary  course  of 
events  will  ever  arise  again ;  sir,  every  hour  that  is  added  to 
the  age  of  our  government,  every  day’s  increasing  popu¬ 
lation  of  our  country,  every  state  admitted  into  the  union, 
renders  still  more  remote  even  this  improbable  contin¬ 
gency.  Gentlemen  have  urged  with  exulting  confidence 
and  particularly  the  honorable  gentleman  from  Maryland 
(gen  Smith)  that  the  people  have  long  thought  on  this 
subject,  and  prepared  for  the  amendment  and  expect 
its  adoption.  I  respect  the  sentiments  of  the  people 
as  highly  as  any  man  when  they  are  well  digested  and 
clearly  expressed — but  in  my  mind  this  is  a  dangerous 
ground  to  advance  far  upon  without  examining  it  well 
for  ourselves  :  it  is  an  argument  that  will  apply  alike  to 
almost  every  question  of  importance  and  goes  to  preclude 
debate  upon  them — for  it  is  well  known  that  there  are 
few  such  submitted  to  us  that  have  not  been  previously 
the  subject  of  thought  and  speculative  conversation  out 
of  doors.  Ours  is  a  country  of  politicians  and  from  the 
nature  of  our  government  must  continue  so,  every  mem¬ 
ber  of  society,  feels  such  a  portion  of  interest  in  the  affairs 
of  the  nation,  as  to  excite  enquiry,  be  his  lot  humble  or 
exalted,  be  his  sentiments  right  or  wrong,  he  expresses 
them  as  he  is  entitled  to  do  with  freedom— but  is  it 
abroad  in  the  country  that  the  most  important  measures 
of  the  government  are  to  be  matured  and  decided  upon  . 
Is  it  in  private  circles,  in  caucuses,  in  clubs,  in  coffee 
houses,  streets  and  bar  rooms  that  great  constitutional 
questions  are  to  be  settled  ?  And  are  we  convened  here 
but  to  register  the  crude  decrees  of  such  assemblages,  or 
only  for  the  humble  purpose  of  answering  to  the  call  of 
our  secretary  with  a  yea  or  nay  ?  If  the  argument 
proves  any  thing  it  amounts  to  this— Would  the  gentle¬ 
man  from  Maryland  or  any  other  honorable  member,  be 
content  to  hold  his  seat  upon  such  terms  ?  If  so  he  may 
indulge  himself  in  one  consolation  that  no  private  citizen 
wouid  envy  him  the  place  ; — but  for  myself  I  claim  the 
exercise  of  higher  and  more  responsible  privileges  oi 
thinking  and  acting  for  myself;  holding  it  my  duty,  so 


(  83  ) 


far  as  I  am  capable,  to  assign  to  my  constituents  the  rea¬ 
sons  that  govern  my  public  conduct. 

It  has  of  late,  Mr.  President,  become  fashionable  to  at¬ 
tach  very  little  importance  to  the  office  of  vice  president, 
to  consider  it  a  matter  but  of  small  consequence  who  the 
man  may  be  ;  to  view  his  post  merely  as  an  idle  post  of 
of  honor,  and  the  incumbent  as  a  cypher  in  the  govern¬ 
ment  ;  or  according  to  the  idea  expressed  by  an  honora¬ 
ble  member  from  Georgia,  (Gen.  Jackson)  quoting,  I 
believe,  the  language  of  some  eastern  politician,  as  a  fifth 
wheel  to  a  coach  ;  but  in  my  humble  opinion  this  doc¬ 
trine  is  both  incorrect  and  dangerous.  The  vice  presi¬ 
dent  is  not  only  the  second  officer  of  government  in 
point  of  rank,  but  of  importance,  and  should  be  a  man 
possessing  and  worthy  of  the  confidence  of  the  nation. 
I  grant,  sir,  should  this  designating  mode  of  election 
succeed,  it  will  go  very  far  to  destroy,  not  the  certain  or 
contingent  duties  of  the  office,  for  the  latter  by  this  re¬ 
solution  arc  considerably  extended,  but  what  may  be 
much  more  dangerous,  the  personal  consequence  and 
worth  of  the  officer ;  by  rendering  the  electors  more  in¬ 
different  about  the  reputation  and  qualification  of  the 
candidate,  seeing  they  vote  for  him  but  as  a  secondary 
character  ;  and  which  may  occasion  this  high  and  im¬ 
portant  trust  to  be  deposited  in  very  unsafe  hands.  By 
a  provision  in  the  1  st  sect,  of  the  2d  art.  of  the  constitu¬ 
tion  “in  case  of  the  removal  of  the  president  from  office, 
or  of  his  death, resignation  or  inability  to  discharge  the  pow¬ 
ers  £t  duties  of  the  said  office,  the  same  shall  devolve  on  the 
vice  president” — and  he  is  constitutionally  the  president, 
not  until  another  can  be  made  only,  but  for  the  residue  ol 
the  term,  which  may  be  neariy  four  years ;  and  this  is  not 
to  be  supposed  a  remote  or  improbable  case.  In  the 
state  to  which  I  have  the  honor  to  belong,  within  a  few 
years  past  two  instances  have  happened  of  the  place  of 
governor  becoming  vacant,  and  the  duties  of  the  office, 
according  to  the  constitution  of  that  state,  devolving  upon 
the  speaker  of  the  senate.  We  knew  welltoo,  generally 
speaking,  that  before  any  man  can  acquire  a  sufficient 
share  of  the  public  confidence  to  be  elected  president, 
the  people  must  have  long  been  acquainted  with  his  cha¬ 
racter  and  his  merit ;  he  must  have  proved  himself  a  good 
and  faithful  servant,  and  will  of  course  be  far  advanced  in 
years,  when  the  chances  of  life  will  be  much  against  him 
—It  may  indeed,  owing  to  popular  iniatuation,  or  some 


/ 


(  34  X 


other  extraordinary  causes,  be  the  ill  fate  of  the  country 
that  an  unworthy,  designing  man,  grown  old  and  gre  y 
in  the  wavs  of  vice  and  hypocrisy,  shad  for  a  time  dis- 
honor  the  presidential  chair,  or  it  may  be  the  fortune  oi 
some  young  man  to  be  elected,  but  those  will  rarely 
happen.  The  convention  in  constructing  this  part  of  tiie 
constitution,  in  settling  the  first  and  second  offices  of  die 
government,  and  pointing  out  the  mode  of  filling,  aware 
cf  the  probability  of  the  V.  P.  succeeding  to  the  office 
of  president,  endeavoured  to  attach  as  much  importance 
and  respectability  to  his  office  as  possible,  by  making  it 
uncertain  at  the  time  of  voting  which  of  the  persons  voted 
for  should  be  president  and  which  vice  president';  so  as  to 
secure  the  election  of  the  best  men  in  the  country,  or  at 
least  those  in  whom  the  people  reposed  the  highest  con¬ 
fidence,  to  the  two  offices — thus  filling  .the  office  of  vice 
president  w  itfc  one  of  our  most  distinguished  citizens, 
who  would  give  respectability  to  the  government,  and  in 
case  of  the  presidency  becoming  vacant,  having  at  his 
post  a  man  constitutionally  entitled  to  succeed,  who  had 
been  honored  with  the  second  largest  number  of  the  suf¬ 
frages  oi  the  people  for  the  same  office,  and  who  oi  con¬ 
sequence  would  be  probably  worthy  of  the  place,  and 
competent  to  its  duties.  Let  us  now,  Mr.  President, 
examine  for  a  moment  the  certain  effect  of  the  change 
about  to  be  made,  or  what  must  be  the  operation  of  this 
designating  principle,  if  you  introduce  it  into  the  consti¬ 
tution  ;  now  the  elector  cannot  designate,  but  must  vote 
for  two  persons  as  president,  leaving  it  to  circumstances 
not  within  his  power  to  control  which  shall  be  the  man  : 
of  course  he  will  select  two  characters,  each  suitable  lor 
tlvat  office,  and  the  second  highest  in  vote  must  be  the 
vice  president ;  but  upon  this  designating  plan  the  pub¬ 
lic  attention  will  be  entirely  engrossed  in  the  election  of 
the  president,  in  making  one  great  man.  The  eyes  of  each 
contending  party  will  be  fixed” exclusively  upon  their  can¬ 
didate  for  this  first  and  highest  office,  no  surrounding  ob¬ 
ject  can  be  viewed  at  the  same  time,  they  will  be  lost  in 
his  disk.  The  office  of  president,  is  in  point  of  honor, 
profit,  trust,  and  influential  patronage  so  infinitely  supe¬ 
rior  to  any  ether  place  attainable  in  this  government,  that 
in  the  pursuit  and  disposal  of  it,  all  minor  considerations 
will  be  forgotten,  every  thing  will  be  made  to  bend  in 
order  to  subserve  the  ambitious  views  of  the  candidates 
and  their  friends.  In  this  angry  conflict  of  parties, 


('«*  ): 


amidst  the  heat  and  anxiety  of  this  political  warfare,  the 
vice  presidency  will  cither  be  left  to  chance,  or  what 
will  be  much  worse,  prostituted  to  the  basest  purposes, 
character,  talents,  virtue,  and  merit  will  not  be  sought 
after  in  the  candidate — the  question  will  not  be  asked, 
is  he  capable  ?  is  he  honest  ?  But  can  he  by  his  name, 
by  his  connexions,  by  his  wealth,  by  his  local  situation, 
by  his  influence,  or  his  intrigues,  best  promote  the  elec¬ 
tion  oi  a  president  ?  He  will  be*  made  the  mere  stepping 
stone  of  ambition.  Thus  by  the  death  or  other  consti¬ 
tutional  inability  of  the  president  to  do  the  duties  of 
the  office,  you  may  find  at  the  head  of  your  government 
the  first  magistrate  of  the  nation,  a  man  who  has  either 
smuggled  or  bought  him  himself  into  office.  Who, 
not  having  the  confidence  oi  the  people,  or  feeling 
the  constitutional  responsibility  of  his  place  ;  but 
attributing  his  elevation  merely  to  accident,  and 
conscious  of  the  superior  claims  of  others,  will  be 
without  restraint  upon  his  conduct,  without  that 
strong  inducement  to  consult  the  wishes  of  the  peo¬ 
ple,  and  to  pursue  the  true  interests  of  the  nation, 
that  the  hope  of  popular  applause,  and  the  prospect 
of  re-election  would  offer.  Such  a  state  of  things 
might  be  productive  of  incalculable  evils  ;  for  it  is,  as  I 
fear  time  will  shew,  in  the  power  of  a  president  of  the 
United  States  to  bring  this  government  into  contempt  and 
this  country  to  di grace,  if  not  to  ruin.  Again  Sir,  if  this 
amendment  succeeds,  if  you  designate  the  person  voted 
for  as  president,  and  the  person  voted  for  as  vice  presi¬ 
dent,  you  hold  out  an  irresistible  temptation  to  contracts 
and  compromises  among  the  larger  states  for  these  offi¬ 
ces  ;  it  will  be  placing  the  choice  of  the  two  highest  offi¬ 
cers  in  the  government  so  completely  within  their  power, 
that  the  five  largest  states,  viz.  Massachusetts,  New  York 
Pennsylvania,  Virginia  and  N.  Carolina,  may  not  only  act 
in  every  previous  arrangement  relative  to  the  appoint¬ 
ment  of  these  officers  without  the  necessity  of  consulting 
the  other  twelve,  but  may  totally  exclude  them  from  any 
participation  in  the  election.  The  whole  number  of 
electors,  according  to  the  present  representation  in  con¬ 
gress  will  be  one  hundred  and  seventy  seven,  these  five 
states  will  have  ninety  six  of  them,  a  clear  majority  of 
eight,  and  should  they  agree  among  themselves,  they 
can  say  absolutely  who  shall  be  the  president,  and  who 
the  vice  president ;  and  other  twelve  states  will  not  have 


(  86  ) 


even  the  humble  privilege  of  choosing  between  their  can¬ 
didates  ;  for  their  whole  number  of  votes  being  but  eighty 
one  given  to  the  candidate  for  the  vice  presidency  as  pre¬ 
sident,  would  be  but  thrown  away,  since  the  other  would 
still  have  his  designated  majority  of  eight  for  that  place. 
Should  it  be  said  that  such  a  coalition  is  improbable,  I  an¬ 
swer  that  my  opinion  is  different  and  i  ;s  enough  ior  me  tnat 
it  is  possible.  Again,  sir,  counting  only  the  states  of 
Massachusetts,  New  York,  Pennsylvania  and  \  irginia, 
these  four  will  be  found  to  be  entitled  to  eighty -two  elec¬ 
tors,  wanting  seven  of  a  majority  of  the  whole  number,  so 
that  leaving  North  Carolina  among  the  smaller  states,  if 
they  unite,  and  can  by  any  species  of  influence,  by  promi¬ 
ses  of  offices,  bribery  or  corruption  gain  over  to  their  in¬ 
terest  but  seven  of  the  electors  belonging  to  the  other 
states,  they  can  in  like  manner  appoint  whom  they  please 
—I  might  go  on  to  shew  that  lopping  even  Massachu¬ 
setts  from  this  list,  the  other  four,  viz.  New  York,  Penn¬ 
sylvania,  Virginia  and  North  Carolina  could  with  very 
little  difficulty  effect  the  same  object,  since  they  are 
entitled  to  seventy -seven  electors.  And  now  let  me  ask 
gentlemen  representing  the  twelve  smaller  states,  if  they 
are  prepared  to  yield  up  not  oniy  the  high  and  honorable 
"■round  upon  which  the  constitution  has  placed  them  in 
the  house  of  representatives  in  case  of  an  election  for  a 
president  to  be  bad  there  ;  but  to  vest  in  the  five  larger 
states,  or  even  in  a  smaller  number  of  them,  whenever 
they  shall  be  pleased  to  exercise  it,  the  exclusive  power 
of  appointing  the  president  and  vice  president  of  the  C . 
States. 

Mr.  Cocke — the  gentleman  last  up  has, to  be  sure,  in  a 
well  studied  speech,  as  often  times  before,  sounded  the 
tocsin  of  alarm,  and  called  in  even  the  aid  of  prophe¬ 
cy  to  enforce  his  fears.  But,  Sir,  this  senate  has  been 
so  much  accustomed  to  these  false  alarms,  that  it  ap¬ 
pears  to  me  the  only  danger  we  are  in  is  that  of  going 
wide  of  the  subject,  and  taking  up  our  time  with  mat¬ 
ters  of  imagination,  instead  of  sticking  to  matter  of  fact. 
'Plie  object  of  this  amendment  to  the  constitution  is  only 
one  thing,  one  plain  and  simple  principle,  to  enable  the 
people  to  discriminate  in  the  choice  of  their  fellow  citi¬ 
zens  for  the  offices  of  president  and  vice  president.  Gen¬ 
tlemen  tell  us  of  large  and  small  states,  but  is  this  amend¬ 
ment  more  in  favor  of  the  large  than  small ;  is  this  not 
$uch  an  amendment  as  will  induce  the  large  states  to 


(  87  ) 


✓ 


promote  the  election  by  the  people  ?  Is  it  not  such  an 
amendment  as  will  prevent  that  corruption  which  so 
many  gentlemen  on  all  sides  apprehend,  if  it  goes  into 
the  house  of  representatives  ?  Where  is  the  use  of  gen¬ 
tlemen  sounding  an  alarm  of  danger  which  they  do  not 
really  believe  themselves  ?  Why  will  gentlemen  talk  of 
the  danger  of  confusion,  threaten  us  with  it,  when  the 
whole  confusion  arises  from  the  acts  of  gentlemen  them¬ 
selves?  We  have  listened  here  with  patience  for  weeks 
together  to  the  arguments  of  gentlemen  ;  they  have  had 
every  fair  opportunity  to  give  their  opinions,  and  it  is 
now  time  to  come  to  a  conclusive  vote.  We  hear  no¬ 
thing  now  but  a  repetition  in  fine  dressed  words  of  what 
we  have  heard  from  day  to  day  for  weeks ;  and  all  for 
what  purpose,  to  excite  our  fears,  fears  which  it  is  our  wish 
to  guard  against  in  reality. 

Gentlemen  tell  us— first — they  suppose  the  people 
may  not  elect  a  president  and  vice  president.  Upon 
what  ground  do  they  pretend  to  believe  this  possible  ; 
are  the  people  so  disgusted  with  their  liberties  ;  are 
they  so  little  attentive  to  their  rights — -are  they  tired  of 
a  government  that  every  day  makes  them  more  happy. 
No,  sir. 

They  then  tell  us  that  they  do  not  wish  that  the  elec¬ 
tion  should  go  into  the  house  of  representatives ;  and 
then  that  that  house  may  not  elect;  and  then  our  very 
honorable  selves  are  recommended  to  make  up  all  defi¬ 
ciencies  1  Do  gentlemen  doubt  themselves,  or  can  they 
compel  congress  to  pass  such  a  law  as  they  require  for 
the  election  of  a  dictator,  without  a  voice  from  the  peo¬ 
ple.  If  gentlemen  fear  that  the  people  will  not  elect, 
and  that  the  other  house  will  not  elect,  with  equal  reason 
they  may  fear  that  the  other  house  would  not  make  the 
law  they  wish  for. 

But  it  is  said  that  some  of  us  are  governed  by  a  fear 
that  the  people  may  not  have  a  choice  in  the  election  of 
vice  president.  If  it  will  afford  gentlemen  any  satisfac¬ 
tion,  I  tell  them  that  it  is  my  wish  that  the  people  should 
elect  the  vice  president  as  well  as  the  president.  I  say 
I  do  not  understand  the  principle  of  minorities  govern¬ 
ing  majorities.  The  law  of  the  minority  is  not  the  law 
of  the  constitution,  and  it  is  not  the  law  for  me.  How 
gentlemen  can  pretend  to  advocate  the  constitution,  and 
talk  of  the  minority  giving  law,  is  to  me,  very  surpris¬ 
ing  ;  they  say  too  the  constitution  is  very  sacred  to  them, 


(  88  ) 


and  it  should  not  be  altered  ;  so  it  is  too,  every  word  sa¬ 
cred  to  me ;  but  among  its  most  sacred  parts,  I  hncl  that 
the  constitution  provides  for  its  own  alteration  and 
amendment  ;  not  indeed  by  a  minority,  by  a  very  large 
majority  in  both  houses,  and  by  a  much  larger  majority 
of  states.  Gentlemen  are  willing  that  a  minority  should 
elect  a  vice  president,  but  they  are  not  willing  that  three 
fourths  of  the  states  should  amend  the  constitution  ; 
they  pass  by  the  open  door  on  the  right  hand  to  get  m  at 

a  private  passage.  .  , 

Mr.  White — to  order — the  gentleman  is  not  surety 

using  any  arguments  of  mine— they  are  of  his  own  mak- 

111  Cocke— the  gentleman  from  Delaware  thinks 

the  minority  should  govern— that  is  his  argument,  how¬ 
ever  he  may  disguise  it ;  I  think  the  majority  snould 
govern;  I  like  to  speak  out— I  do  not  wish  to  have  a 
man  put  upon  us  contrary  to  our  wishes— what,  shall  the 
majority  abandon  the  right  of  choosing  a  man  whose  opi¬ 
nions  are  conformable  to  theirs,  and  suffer  a  man  ot  prin¬ 
ciples  hostile  to  theirs  to  be  put  upon  them.  I  am,  sir, 
for  a  government  of  the  people,  whether  well  born  or 
born  by  accident;  lam  for  a  government  not  of  cheats 
and  balances,  but  one  that  will  not  suffer  a  bad  check 

upon  er»od  principles.  .  , 

But  we  are  once  more  told  of  a  Gallic  Cxsar,  and  our 

fears  are  to  be  provoked  this  way  too — but  this  more 
than  the  rest  of  alarms  will  not  do  ;  we  fear  no  Cxsar 
foreign  or  domestic.  We  have  indeed  seen  the  day 
when  we  were  near  getting  a  president  not  of  our  choice  r 
but  because  we  have  escaped  from  the  danger  and  the 
intrigue  of  that  day,  are  we  to  take  no  precaution  against 
such"  measures  again.  It  is  to  guard  against  such  dan¬ 
gers  we  wish  to  amend  this  constitution.  But  gun  - 
men  tell  us  we  have  not  given  it  a  fair  trial.  think 
we  have  and  found  .it  defective  ;  here  we  have  been  a 

week  and  upwards,  labouring  and  bewildered  in  every 

kind  of  discussion,  and  what  have  we  come  to,  exactly 
where  we  set  out— Not  one  ol  us  has  altered  our  opin¬ 
ions— we  have  argued  and  listened  and  done  nothmg— 

whv,  because  gentlemen  have  been  attempting  impos¬ 
sibilities,  there  is  no  such  thing  as  moving  either  side 
from  their  principles;  one  side  thinks  the  minoriy. 
should  give  the  law— we  think  with  the  constitution  the 
SttsTn  the  majority-and  we  will  submit  to  no  other 
law.  I  am  for  the  amendment  and  for  a  discrimination. 


(  89  ) 


Mr.  Plume  a  ha. cl  generally  contented  himself  with  a 
silent  vote  on  public  questions  ;  on  the  present  occasion 
he  could  not  as  the  representative  of  a  small  state  oass 
the  question  without  delivering-  his  reasons  for  his  vote. 
He  agreed  with  gentlemen  that  the  constitution  had  nro- 
vided  for  its  amendment  ;  but  there  was  a  feat-ire 
equally  strong,  and  principles  more  generally  diffused, 
thro’  that  instrument,  a  strong  guard  against' encroach¬ 
ments  and  innovations. 

There  are  two  modes  by  which  the  constitution  may 
be  amended.  The  first  is  that  when  two  thirds  of  the 
states  think  proper  to  call  a  convention,  and  when  such 
amendments  as  this  convention  may  propose  attain  the 

subsequent  ratification  of  three-fourths  of  the  states. _ 

In  this  case  congress  has  no  other  right  of  interference 
than  to  enquire  whether  three-fourths  of  the  states  have 
given  their  due  concurrence*to  the  amendment  proposed. 

The  other  mode  of  amendment  is  that  which  we  are 
called  upon  to  perform  in  the  manner  proposed  by  the 
report  now  under  discussion  ;  it  is  an  amendment  to 
which  consent  of  tztn  thirds  of  both  houses  of  congress 
is  in  the  first  instance  necessary,  and  to  render  it  obliga¬ 
tory  must  have  the  subsequent  ratification  of  three  fourths 
of  the  states. 

The  latter  mode  of  amendment  was  now  to  be  con¬ 
sidered,  and  on  the  first  view  he  thought  it  proper  to 
state,  that  according  to  his  judgement  of  the  constitution 
two  thirds  of  both  houses  meant  not  simply  two  thirds 
of  all  the  members  present  in  each  house,  but  of  all  the 
members  elected .  By  a  reference  to  similar  principles 
in  other  parts  of  the  constitution  this  opinion  was  greatlv 
strengthened  ;  as  in  the  case  of  a  law  which  the  president 
may  object  to,  he  may  return  the  bill  to  both  houses 
with  his  reasons  for  refusing  his  assent  to  it,  and  if  after 
reconsideration  two  thirds  of  one  house  shall  repass  it, 
and  two  thirds  of  the  other  house  shall  re-approve,  then 
it  shall  become  law — another  case  wherein  large  propor¬ 
tions  or  majorities  are  resorted  to  is  when  the  election 
>f  a  president  devolves  on  the  house  of  representatives 
where  the  votes  are  to  be  taken  by  states,  each  state 
having  one  vote ;  but  though  a  quorum  of  two  thirds 
mly  may  be  present,  a  majority  of  all  the  states  shall  be 
lecessary  to  a  choice.  In  like  manner  in  cases  of  im¬ 
peachment  the  concurrence  of  two  thirds  of  the  mem* 
>ers  pres*  nt  is  required ;  so  treaties  are  ratified  with 

M 


(  90  ) 


the  concurrence  of  two  thirds  of  the  members  lireunt; 
members  of  either  house  may  be  expelled  with  the  con- 

currence  of  two  thirds.  .  . 

Here  in  all  these  various  cases  there  are  distinctions 

made  in  the  proportions  applicable  to  the  particular  na¬ 
ture  of  the  cases  ;  in  some  the  proportions  are  two-tmr  s 
of  the  members  present  ;  in  others  two-thirds  of  the 
several  houses.  In  the  case  of  the  amendment  to  the 
constitution  it  is  in  the  latter  terms,  and  evidently  means 
two-thirds  of  the  whole  number  elected.  Indeed  the 
reason  of  the  case  proves  that  it  must  be  so  construed, 
for  if  two-thirds  of  the  members  present  could  aitei  the 
constitution,  at  the  present  time  twelve  members  being 
little  more  than  a  third  of  the  whole  house  may  loim 
two-thirds  ofaquorom.  He  thought  it  necessary  to  go 
into  those  observations,  that  the  senate  might  guard 
ai-ainst  party  innovations,  and  to  draw  their  attention  to 
the  principles  of  the  constitution  from  which  he  did  no 
wish  to  deviate.  In  the  case  of  amendment  it  was  evi¬ 
dent  to  him  that  two-thirds  of  the  whole  number  ol  each 
house  was  requisite  to  validate  an  amendment. 

'  Instructions  from  the  legislatures  01  some  states  to 
their  representatives  have  been  mentioned.  I  us  ie 
considered  as  altogether  irregular.  The  state  legisla¬ 
tures  were  intended  as  a  check  upon  the  propositions 
which  might  be  offered  by  congress,  but  here  they  be¬ 
come  their  counsellors  and  guides  ;  this  he  considered 
as  an  usurpation  of  authority.  Instructions  may  oe 
nroper  in  some  cases,  but  in  that  of  amendments  they 
are  improper,  because  it  is  an  interference  or  an  attempt 
to  deprive  congress  of  its  own  right  of  judgment  on  wha 
comes  before  them— in  a  case  where  the  tinal  decisioi 

rests  with  the  adviser. 

\s  to  the  doctrine  of  amendments  generally,  gentle, 
men  go  too  far.  There  are  certain  rights  preserve! 
which  cannot  be  changed,  and  which  no  amendment  cai 
reach.  Tor  example,  no  state  can  be  deprived  ol  it 
equal  representation  in  this  house  by  two  thir  * 
nor  any  other  number  without  its  own  consent  ,  >° 
cannot  make  any  alteration  in  the  uniformity  of  taxatio 
on  states;  nor  in  the  uniformity  of  naturalizat  on,  nc 
concerning  the  importation  of  slaves  before  the  y?* 
1808  ;  neither  can  you  by  any  numbers  countenance  c 
establish  any  other  form  of  government,  or  sutler  it  to 
established,  than  a  republican  form  of  government,  t< 


-  '  (  91  ) 


the  constitution  guarantees  that  form  to  each  state.— * 
This  is  a  fundamental  principle  which  you  have  no  pow¬ 
er  to  alter,  and  the  authority  to  amend  in  the  cases  ad¬ 
mitted  cannot  be  construed  to  go  to  the  alteration  of  a 
fundamental  principle,  it  goes  only  to  the  forms.  The 
amendment  now  before  you  appears  to  be  fundamental  ; 
the  election  of  president  and  vice  president  was  purposely 
rendered  complex,  for  wise  and  wholesome  ends  ;  and 
whoever  will  advert  to  the  fate  of  countries  where  free 
government  has  prevailed,  will  perceive  that  the  com¬ 
plexity  of  election  was  intended  to  guard  against  the 
evils  which  produced  their  destruction.  This  doctrine 
of  amendment  is  specious,  but  see  the  effects  of  it  in 
another  country.  How  many  new  constitutions  and 
amendments  have  been  introduced  in  France,  each  pro¬ 
fessedly  more  perfect  than  the  other,  till  the  people  wea¬ 
ried  by  frequent  change  established  a  despotism.  Shall 
we  not  be  warned  by  their  fate  ? 

But  we  are  told  the  people  of  the  United  States  desire 
this  amendment  ;  we  should  be  glad  to  hear  how  this 
has  been  manifested  ? — .have  conventions  been  called  ? — 
have  the  state  legislatures  declared  it  ? — No  ;  we  have 
heard  no  such  things.  The  people  are  not  in  favor  of  a 
measure  calculated  to  give  strength  to  the  powerful  and 
to  weaken  the  already  weak  ;  it  has  a  tendency  to  throw 
the  choice  perpetually  into  the  hands  of  the  large  states  ; 
four  and  a  half  states  may  by  this  amendment  perpetu¬ 
ally  elect  the  president ;  under  the  present  form  the 
large  states  cannot  so  easily  unite.  Can  this  measure 
then  have  a  tendency  to  conciliate  and  harmonize  the 
several  states?  No,  jealousy  must  be  the  result,  and  the 
evil  will  be  greater  as  it  relates  to  the  choice  of  a  vice 
president  ;  inferior  men  will  be  chosen  to  that  office  ; 
men  unfit  for  superior  command  ;  the  office  will  be  car¬ 
ried  to  market ;  the  friends  of  an  ambitious  candidate  for 
the  president  will  barter  their  votes  to  him  who  will  con¬ 
sent  not  to  be  a  rival  ;  and  this  is  not  the  only  evil,  for 
the  four  large  states  in  the  vice  president  chosen  will 
give  themselves  a  third  senator  on  this  lloor. 

There  was  one  defect  already  in  the  constitution, 
which  this  amendment  would  render  worse.  The  hold¬ 
ers  of  slaves  in  the  different  states  elect  eighteen  electors 
of  president  and  vice  president  by  means  of  that  popu¬ 
lation.  This  operates  injuriously  on  those  states  which 
have  not  that  species  of  property.  You  now  destroy  the 


(  92  ) 


complex  system  of  election,  and  yet  leave  this  dispropor¬ 
tionate  influence  of  eighteen  electors  to  exist. 

Beside  however  gentlemen  may  flatter  themselves,  the 
amendment  is  not  adequate  to  the  correction  ot  the  sup¬ 
posed  evil.  It  would  no  doubt  be  desirable  to  prevent 
the  election  horn  going  to  the  house  of  representatives  ; 
but  the  proposition  now  under  consideration  renders  it 
even  worse,  for  it  renders  it  probable  that  no  choice  what¬ 
ever  may  be  made  ;  and  will  not  the  same  or  greater 
difficulties  then  exist?  It  is  true  that  they  will  have 
nothing  to  do  with  the  choice  of  vice  president.  But 
will  they  agree  on  the  president  in  such  a  case  with  more 
facility  when  they  have  equal  numbers  upon  a  discrimi¬ 
nating  ballot,  than  when  there  are  two  candidates  upon 
the  same  banot ;  he  conceived  the  difficulty  would  be 
greater. 

Gen.  Jackson.  The  gentleman  last  up  arid  another 
who  preceded  him  from  Massachusetts  (Mr.  Pickering) 
had  taken  a  ground  which  he  did  not  expect  to  hear  in 
the  elective  senate  of  a  free  people.  They  questioned 
not  only  the  propriety  of  the  present  amendment,  but  of 
all  amendments.  Ibis  he  considered  as  of  no  great  con¬ 
sequence,  but  he  thought  it  merited  notice,  because  the 
dislike  of  amendments  is  expressed  by  gentlemen  who 
wish  to  have  it  believed  that  they  are  more  strongly 
attached  to  the  constitution  than  others  ;  and  though  the 
constitution  which  they  so  ardently  admire  provides  ex¬ 
pressly  for  its  own  amendment.  Gentlemen  liked  the 
constitution,  but  they  disliked  all  amendment,  forgetting 
that  as  long  as  human  society  exists,  it  must  be  subject 
to  human  fraiities  ;  nothing  that  comes  from  the  head  ot 
man  can  be  perfect  ;  and  though  we  may  faii  to  correct 
in, perfections  in  human  institutions,  it  is  our  duty  to  per¬ 
severe  ana  employ  every  means  which  time  and  experi¬ 
ence  point  out  to  us,  to  render  our  state  as  secure  from 
evil  as  possible. 

Wire  is  it  that  gentlemen  constantly  refer  us  to  France 
—do  gentlemen  by  referring  us  to  that  unfortunate  coun¬ 
try,  expect  to  impress  a  belief  on  us  that  there  is  any 
resemblance  of  situation  or  circumstances  between  the 
two  countries  ;  or  are  they  so  blind  as  not  to  see  that  the 
state  of  liberty  in  that  country  should  be  a  most  earnest 
motive  "with  us  toprowde  such  amendments  to  our  con¬ 
stitution  as  may  secure  us  against  the  danger  of  usurpa¬ 
tion.  Our  situation  has  never  resembled  that  of  France? 


(  93  ) 


but  during  our  revolution.  That  nation  had  not  theop- 
portunity  of  sitting  clown  after  the  overtht  ow  of  her  ene¬ 
mies,  and  forming  a  free  constitution  in  peace,  as  we 
had.  It  was  in  the  conflicts  of  faction  excited  by  foreign 
enemies,  that  the  state  of  France  was  changed  ;  but  she 
had  been  always  different  from  us.  France  was  always 
one  and  indivisible.  In  that  country  we  have  seen  the 
conflicts  of  faction,  and  the  frantic  zeal  of  adherents  con¬ 
vulsing  the  nation ;  have  we  not  had  any  similar  transac¬ 
tions  during  our  own  revolution?  Were  there  no  fac¬ 
tions  even  in  our  revolutionary  councils  ?  Have  we  had 
no  ambitious  men  since  seeking  to  destroy  our  liberties  ? 
Are  there  none  now  who  would,  if  they  could  hope  for 
success,  attempt  it?  Thanks  to  our  better  fortune,  tho* 
we  have  encountered  many  a  storm,  and  though  bad  pi¬ 
lots  had  nearly  foundered  us,  the  vessel  of  state  is  still 
safe,  and  her  liberties  are  not  gone  by  the  board.  Thanks 
to  the  sound  sense  of  the  people,  unbounded  thanks  to 
the  able  pilot  who  now  holds  the  helm,  we  have  escaped 
a  wreck,  and  are  now  more  prosperous  and  happy  than 
at  any  former  period.  The  exalted  character  who  is  now 
at  the  head  of  aiiairs  defies  the  shallow  railings  and  little 
minded  attacks  of  his  enemies ;  his  character  stands  too 
high  above  their  reach  to  be  affected  by  the  insects  that 
crawl  beneath  him  ;  his  conduct  is  above  their  censure, 
and  his  good  deeds  have  rendered  him  dear  to  his  fellow 
citizens.  His  countrymen  had  fixed  their  eyes  upon 
him,  but  arts  had  been  employed  to  frustrate  their  wishes. 
The  effect,  however,  had  been  fortunate  ;  and  if  it  had 
not  been  for  accidental  circumstances,  there  never  would 
have  been  room  for  the  alarming  contest  which  took 
place  in  the  house  of  representatives.  He  had  the  best 
reason  to  know,  that  it  never  was  intended  to  make  any 
other  man  president.  He  was  at  that  period  at  the  head 
of  the  government  of  Georgia,  and  happened  to  be  pre¬ 
sent  when  a  letter  was  received,  directed  to  some  of  the 
electors,  the  contents  of  which  were  communicated  to 
him.  The  electors  of  Georgia  had  determined  to  give 
two  of  their  votes  to  Governor  Clinton.  The  letter  was 
from  an  influential  gentleman  in  South  Carolina,  press¬ 
ing  them  to  give  all  their  votes  equal,  as  it  was  alleged 
that  if  they  were  not  given  a  character  not  acceptable  to 
the  people  would  be  vice  president.  It  was  therefore  to 
secure  for  Mr.  Burr  the  vice  presidency  that  those  two 
votes  were  given,  which  would  not  have  been  given  if 


(  94  ) 

the  least  suspicion  had  been  entertained  of  what  subse¬ 
quently  happened. 

But  it  is  asserted  that  there  may  be  a  coalition  of  the 
large  states,  and  thus  this  amendment  is  intended  to 
depress  the  small  states.  These  things  gentlemen  said 
only  because  they  could  say  nothing  to  the  purpose. 
Will  any  gentleman  say  that  Massachusetts  and  Virginia 
have  united.  Look  to  their  representatives*  and  ask 
them  if  such  is  the  case.  Will  those  states  be  ever 
likely  to  coalesce  in  party  views  ?  never — there  is  one 
point  only  upon  which  they  could  be  united — the  defence 
of  common  country.  Tear  a  leaf  from  the  constitution  and 
they  will  rally  together  and  the  small  states  will  cling 
around  them. 

But  why  is  this  jealousy  of  Virginia  excited-— when  and 
where  has  she  domineered  over  her  sister  states — she  is 
as  incapable  of  the  attempt  as  of  submission  to  an  insul¬ 
ting:  and  insidious  domination.  From  whence  do  you 
derive  your  constitution?  From  Virginia.  When  your 
small  states  refused  to  submit  to  a  paltry  5  per  cent,  im¬ 
post  on  foreign  goods — what  was  then  your  situation  ? 
Who  stood  forward?  Virginia;  she  saw  the  situation  of 
their  common  country,  she  saw  the  glories  of  the  revolu¬ 
tion  and  the  liberties  of  the  people  endangered  by  the 
blind  and  selfish  policy  of  the  small  states  ;  and  she  with 
her  accustomed  sagacity  found  out  the  remedy,  by  pro¬ 
posing  a  convention — in  which  ycur  constitution  origin¬ 
ated. 

To  whom  are  you  indebted  for  the  revolution  !  T o  the 
brave  state  of  Massachusetts,  the  gratitude  of  America 
is  due  for  her  valour,  her  constancy,  and  her  sufferings. 
But  it  is  to  Virginia  you  owe  the  instructive  spirit  and 
the  manful  determination  of  the  first  resolve,  and  first 
determination  to  be  free,  sovereign,  and  independent. — 
Why  then  is  this,  jealousy  attempted  ?  Is  it  because 
she  had  given  us  Washington  in  our  revolution,  and  Jef¬ 
ferson  now  ?  Is  it  to  the  superiority  of  her  patriots  and 
statesmen  we  must  attribute  this  unworthy  envy? 

It  had  been  asked  why  we  do  not  resort  to  a  conven¬ 
tion,  if  we  wish  to  amend  the  constitution.  For  his 
part  he  w7as  averse  to  calling  conventions,  but  when  no 
other  remedy  was  provided  ;  bodies  of  that  description 
are  invested  with  boundless  power ;  the  physical  and  politic 


*  Messrs.  Adams  and  Pickering 


(  95  ) 


cal  powers  of  the  state  are  in  their  hands ;  and  they  are 
therefore  more  exposed  to  the  zeal  and  the  intrigues  of  the 
ardent  and  ambitious.  The  constitution  has  provided 
means  more  simple,  and  fully  adequate  ;  and  even  though 
we  might  err  in  our  determinations,  the  check  of  three 
fourths  of  the  legislatures  will  be  an  adequate  protection 
against  the  invasion  of  the  public  rights. 

We  are  told  we  shall  give  up  every  thing  if  we  pass 
this  amendment ;  shall  we  really  have  more  or  less  power 
than  before — -or  has  there  been  any  coalition  which  is 
under  an  apprehension  of  losmg  every  thing  by  its  pas¬ 
sage  ? 

W e  are  told  that  the  candidates  on  a  former  occasion 
had  an  equal  claim  and  equal  pretensions  to  the  office  of 
president.  He  did  not  wkh  to  make  comparisons;  but 
he  could  not  but  recollect  that  the  attempt  to  supersede 
one  of  the  candidates  and  to  place  the  other  in  his  station 
had  endangered  the  government ;  and  from  what  he  had 
already  said,  he  believed  it  would  not  be  questioned,  that 
so  far  as  concerned  Georgia,  it  never  was  intended  to 
give  them  an  equal  chance  ;  and  small  and  obscure  as 
that  little  corner  called  Georgia  is,  had  the  measure  been 
pursued  to  consummation  which  had  been  attempted  on 
that  occasion,  she  would  have  flown  to  arms,  and  South 
Carolina  would  have  joined  her  to  do  justice  to  the  in¬ 
terest  of  the  nation. 

The  gentleman  from  Delaware  (Mr.  White)  had  talked 
of  intrigues.  The  days  of  intrigue  are  past,  they  are 
gene,  and  the  intriguers  with  them  ;  the  people  have  got 
the  man  of  their  choice ;  Mr.  Jefferson  has  no  occasion 
for  intrigue  were  he  disposed  to  employ  it;  the  admin¬ 
istration  has  none;  the  policy  of  the  executive  is  above 
all  intrigues  ;  the  affections  of  the  people  are  his,  and 
justiy  for  under  his  administration  they  are  the  happiest 
people  that  ever  existed.  Never  Will  there  be  a  federal 
president  or  vice  president  again  elected  to  the  end  of 
time ;  if  there  should  ever  be  any  other  chosen  out  of 
the  line  of  the  present  politics,  it  must  be  from  some 
new  sect,  which  assuming  the  principles  of  the  repub¬ 
licans  may  succeed  by  carrying  their  zeal  for  liberty 
farther. 

He  did  not  wish  to  discuss  largely  the  allusion  of  the 
gentleman  to  a  fifth  wheel.  Were  the  subject  to  be 
confined  to  our  own  country  he  should  go  fully  into  that 
subject— -he  wished  not  to  afford  any  handle  for  the  dis- 


(  96  ) 


respect  of  foreign  nations  towards  any  part  of  our  insti¬ 
tutions.  But  he  would  spurn  the  insinuations  of  those 
who  would  suggest  that  we  shall  not  choose  a  man  of  in¬ 
tegrity  for  the  office  of  vice-president.  The  people,  sir, 
will  solicit  a  man  worthy  of  their  confidence,  and  honor¬ 
ed  abroad  and  at  home. 

The  amendment  to  the  constitution  he  considered  ne¬ 
cessary  and  salutary  ;  and  he  was  in  hopes  when  gentle¬ 
men  saw  the  benefits  they  would  come  forward  and  thank 
us  for  it. 

Mr.  Tracy  hoped  the  senate  would  now  adjourn  ; — 
on  the  question  being  put,  it  was  lost. 

The  motion  of  Mr.  Tracy  for  an  adjournment,  hav¬ 
ing  been  negatived,  he  then  addressed  ihe  president. — 

*Mr.  Tracy — moved  an  adjournment,  because  he 
thought  a  more  full  and  fair  discussion  was  due  to  this 
important  question,  than  could  be  had  after  this  late 
hour. 

The  merits  have  never,  until  now,  been  before  us, 
for  although  considerable  time  has  been  consumed  in 
debate,  it  has  chiefly  been  directed  to  the  subordinate 
amendments,  and  not  to  the  main  resolution.  But  since 
the  senate  have  refused  to  adjourn,  I  will  now  offer  some 
observations  on  the  merits,  in  doing  which,  I  will  study 
brevity,  as  much  as  the  importance  of  the  subject  will 
permit. 

I  shall  attempt  to  prove,  sir,  that  the  resolution  before 
us,  contains  principles  which  have  a  manifest  tendency 
to  deprive  the  small  states  of  an  important  right,  se¬ 
cured  to  them  by  a  solemn  and  constitutional  compact, 
and  to  vest  an  overwhelming  power  in  the  great  states. 
And,  further,  I  shall  attempt  to  show,  that  in  many  ether 
points  the  resolution  is  objectionable,  and  for  a  variety 
of  causes,  ought  not  to  be  adopted. 

As  I  shall  be  obliged  in  delineating  the  main  features 
of  this  resolution  to  mention  the  great  states  in  the  union 
as  objects  of  jealousy,  I  wish  it  to  be  understood,  that 
no  special  stigma  is  intended.  “  Man  is  man”  was  the 

*  The  editor  thinks  it  due  to  himself,  that  this  speech  was 
not  reported  by  him,  but  copied  from  a  printed  pamphlet.  He 
has  preferred  giving  this  report  to  that  from  his  own  notes,  be¬ 
cause  it  might  be  considered  as  an  indication  of  apprehension 
that  it  might  have  greater  weight  than  the  original ;  and  as  it  is 
but  reasonable  that  the  public  should  know  ail  that  can  be  said 
•«  the  subject.  Without  this  explanation  many  who  heard  the 
debate  might  think  the  reporter  had  taken  too  great  liberties 
with  the  speech. 


maxim  expressed  in  an  early  part  of  this  debate,  by  the 
gentleman  from  South  Carolina,  (Mr.  Butler)  and  in 
application  to  the  subject  of  government,  the  maxim  is 
worthy  to  be  written  in  letters  of  gold.  Yes,  sir,  “  man 
is  man  ”  and  the  melancholy  truth  that  he  is  always  im¬ 
perfect  and  frequently  wicked,  induces  us  to  fear  his 
power,  and  guard  against  his  rapacity,  by  the  establish¬ 
ment  and  preservation  of  laws,  and  well  regulated  con¬ 
stitutions  of  government.  Man,  when  connected  with 
very  many  of  his  teiiow  men,  in  a  great  state,  derives 
power  from  the  circumstance  of  this  numerous'comoi- 
nation  ;  and  from  every  circumstance  which  clothes 
him  with  additional  power,  he  will  generally  derive  some 
additional  force  to  his  passions. 

Having  premised  this,  I  shall  not  deem  it  requisite 
to  make  any  apology  when  I  attempt  to  excite  the  at¬ 
tention,  the  vigilance,  and  even  the  jealousy  of  the  small, 
in  reference  to  the  conduct  of  the  great  states.  The 
caution  is  meant  to  apply  against  the  imperfections  and 
passions  of  man,  generally,  and  not  against  any  state,  or 
description  of  men,  particularly . 

It  may  be  proper  in  this  place  to  explain  my  mean¬ 
ing  when  I  make  use  of  the  words  small  and  great  as  ap¬ 
plicable  to  states. 


Massachusetts  has  been  usually  called  a  great  state  ; 
but  in  respect  to  all  the  operations  of  this  resolution,  she 
must,  I  think,  be  ranked  among  the  small  states.  The 
district  of  Maine  isi  increasing  rapidly,  and  must,  in  the 
nature  of  things,  soon  become,  a  state.  To  which  event, 
its  location,  being"  divided  from  what  was  the  ancient 
colony  of  Massachusetts,  by  the  intervention  of  New 
Hampshire,  will  very  much  contribute.  I  believe  there 
is  a  legislative  provision  of  some  years  standing,  author¬ 
ising  a  division  at  the  option  of  Maine.  When  this 
event  shall  occur,  Massachusetts,  although  in  compari¬ 
son  with  Connecticut  and  Rhode  Island,  will  not  be  a 
small  state  ;  yet  in  comparison  with  many  others,  must 
be  so  considered.  I  think  myself  justifiable  then,  for 
my  present  purposes,  in  calling  Maine,  New  Hampshire, 
Massachusetts,  Rhode  Island,  Connecticut,  Vermont, 
New  Jersey,  Delaware,  Maryland  and  South  Carolina, 
small  states.  They  are  limited  in  point  of  territory,  and 
cannot  reasonably  expect  any  great  increase  of  population 
for  many  years,  not  indeed  until  the  other  states  shall 
become  so  populous  as  to  discourage  emigration,  with 

•  N 


(  93  ) 


agricultural  views  ;  which  may  retain  the  population  of 
the  small  states  as  seamen  or  manufacturers.  This 
event,  if  it  ever  arrives,  must  be  distant.  A  possible  ex¬ 
ecution  only,  may  exist  in  favor  of  Maine  ;  but  when  we 
consider  its  climate,  and  a  variety  of  other  circumstances, 
it  is  believed  to  form  no  solid  exception  to  this  state¬ 
ment. 

Bv  the  same  rule  of  deciding,  the  residue  of  the  states 
must  be  called  great;  for  although  Georgia  and  several 
others  are  not  sufficiently  populous,  at  to  is  time,  to  be 
considered  relatively  great  states;  yet  their  prospect  of 
increase,  with  other  circumstances,  fairly  bring  them 
within  the  description,  in  respect  to  the  operation  of  the 
measure  now  under  consideration. 

It  will  be  recollected  that  in  the  various  turns  which 
this  debate  has  taken,  gentlemen  have  repeatedly  said 
that  the  constitution  was  formed  for  the  people,  that  the 
good  of  the  whole  was  its  object,  that  nothing  was  dis¬ 
cernible  in  it  like  a  contest  of  states,  nothing  like  jealousy 
of  small  states  against  the  great ;  and  although  such  dis¬ 
tinctions  and  jealousies  might  have  existed  under  the 
first  confederation  ;  yet  they  could  have  no  existence  un¬ 
der  the  last.  And  one  gentleman  (Mr.  Smith  of  Mary¬ 
land)  has  said  that  he  has  been  a  member  of  this  govern¬ 
ment  ten  years,  and  has  heard  nothing  of  great  and  small 
states,  as  'in  the  least  affecting  the  operations  of  go¬ 
vernment,  or  the  feelings  of  those  ’wno  aumimstci  ed  it. 

Propriety,  therefore,  requires  tnatwe  attentive*)  ex¬ 
amine  the  constitution  itself,  not  only  to  obtain  correct 
ideas  upon  these  observations,  so  repeatedly  urged;  but 
to  place  in  the  proper  light  the  operations  and  effects  ol 
the  resolution  in  debate. 

If  we  attend  to  the  constitution,  we  shall  immediately 
hud  evident  marks  of  concession  and  compromise,  and 
that  the  parties  to  these  concessions  were  the  great  and 
small  states.  And  the  members  of  the  convention  who 
formed  the  instrument  have,  in  private  information  and 
public  communications,  united  in  the  declaration,  that 
the  constitution  was  the  result  of  concession  and  com¬ 
promise  between  the  great  and  small  states.  In  this  ex¬ 
amination  of  the  constitution  it  will  be  impossible  to  keep 
out  of  view  our  political  relations  under  the  first  confe¬ 
deration.  We  primarily  united  upon  the  footing  of  com¬ 
plete  state  equality,  each  state  had  one,  and  no  state  had 
more  than  one  vote  in  the  federal  council  or  congress.— 


(  99  ) 


With  such  a  confederation  we  successfully  waged  war, 
and  became  an  independent  nation.  When  we  were  re¬ 
lieved  from  the  pressure  of  war,  that  confederation, 
both  in  structure  and  power,  was  found  inadequate  to 
the  purposes  for  which  it  was  established.  Under 
these  circumstances,  the  states,  by  their  convention 
entered  into  a  new  agreement  upon  principles  better 
adapted  to  promote  their  mutual  security  and  happiness. 
But  this  last  agreement  or  constitution,  under  whicn  we 
are  now  united,  was  manifestly  carved  out  of  the  hrst 
confederation.  The  small  states  adhered  tenaciously  to 
the  principles  of  state  equality  ;  and  gave  up  only  a  part 
of  this  federative  principle,  complete  state  equality,  and 
that,  with  evident  caution  and  reluctance.  To  this,  fede¬ 
rative  principle  they  were  attached  by  habit ;  and  their 
attachment  was  sanctioned  and  corroborated  by  the  ex¬ 
ample  of  most  if  not  all  the  ancient  and  the  modern  con¬ 
federacies.  And  when  the  great  states  claimed  a  weight 
in  the  councils  of. the  nation  proportionate  to  their  num¬ 
bers  and  wealth,  the  novelty  oi  the  claim,  as  well  as  its 
obvious  tendency  to  reduce  the  sovereignty  of  the  small 
states,  must  have  produced  serious  obstacles  to  its  admis¬ 
sion.  Hence  it  is,  that  we  find  in  tne  constitution  but 
one  entire  departure  from  the  federal  principle.  I  he 
house  of  representatives  is  established  upon  the  popular 
principle  and  given  to  numbers  and  wealth,  or  to  the 
great  states,  which  in  this  view  ot  the  subject  are  syno- 
nimous.  It  was  thought  by  the  convention,  that  a  con¬ 
solidation  of  the  states  into  one  simple  republic,  would  be 
improper.  And  the  local  feelings  and  jealousies  ol  all, 
but  more  especially  of  the  small  states,  rendered  a  con¬ 
solidation  impracticable. 

The  senate,  who  have  the  power  of  a  legislative  check 
upon  the  house  of  representatives,  and  many  other  ex¬ 
tensive  and  important  powers,  is  preserved  as  an  entire 
federative  feature  of  government  as  it  wasenjoyed,  by  tne 
small  states,  under  the  first  confederacy. 

In  the  article  which  obliges  the  electors  of  president 
to  vote  for  one  person  not  an  inhabitant  ol  the  same 
state  with  themselves,  is  discovered  state  jealousy.  In 
the  majorities  required  for  many  purposes  by  the  con¬ 
stitution  ;  although  there  were  other  motives  for  the 
regulations  ;  yet  the  jealousy  ol  the  small  states  is 
clearly  discernible.  Indeed,  sir,  if  we  peruse  the  consti¬ 
tution  with  attention,  we  shall  find  the  small  states  are, 


(  100  ) 


perpetually  guarding  the  federative  principle,  that  is, 
state  equality.  And  this,  in  every  part  of  it,  except  in 
the  choice  of  the  house  of  representatives,  and  in  their 
ordinary  legislative  proceedings.  They  gc  so  far  as  to 
prohibit  any  amendment  which  may  affect  the  equality 
of  states  in  the  senate. 

This  is  guarding  against  almost  an  impossibility ;  be¬ 
cause  the  senators  of  small  states  must  be  criminally  re¬ 
miss  in  their  attendance,  and  the  legislatures  extremely 
off  their  guard,  if  they  permit  such  alterations,  which 
aim  at  their  own  existence.  But  lest  some  accident, 
some  unaccountable  blindness  or  perfidy  should  put  in 
jeopardy  the  federative  principle  in  the  senate,  they 
totally  and  forever  prohibit  all  attempts  at  such  a  mea¬ 
sure. 

In  the  choice  of  president,  the  mutual  caution  and 
concession  of  the  great  and  small  states  is,  if  possible, 
more  conspicuous  than  in  any  other  part  of  the  consti¬ 
tution. 

He  is  to  be  chosen  by  electors  appointed  as  the  state 
legislatures  shall  direct,  not  according  to  numbers  en¬ 
tirely,  but  adding  two  electors  in  each  state  as  represen¬ 
tatives  of  state  sovereignty.  I  bus  Delaware  obtains 
three  votes  for  president,  whereas  she  could  have  but 
one  in  rkdit  of  numbers.  Yet  mixed  at  this  mode  of 

O  m 

choice  is,  with  both  popular  and  federative  principles ; — 
we  see  the  small  states  watching  its  motions  and  cir¬ 
cumscribing  it  to  one  attempt  only,  and  on  failure  of 
an  electoral  choice  they  instantly  seize  upon  the  right 
of  a  federal  election,  and  select  from  the  candidates  a 
president,  by  states,  and  not  by  numbers.  In  confirma¬ 
tion  of  my  assertion,  that  this  part  of  the  constitution 
was  peculiarly  the  effect  of  compromise  between  the 
great  and  small  states ;  permit  me  to  quote  an  authority 
which  will  certainly  have  great  weight,  not  only  in  the 
senate,  but  through  the  union,  I  mean  that  of  the  pre¬ 
sent  secretary  of  state  (Mr.  Madison)  who  was  a  leading 
member  of  the  federal  contention  who  formed,  and  of 
the  Virginia  convention  who  adopted  the  constitution. — 
In  the  debates  of  the  Virginia  convention,  vol.  3,  page  77 
he  says,  (speaking  ot  the  mode  of  electing  the  president,) 
“  as  to  the  eventual  voting  by  states  it  has  my  approba¬ 
tion.  The  lesser  states  and  some  larger  states  will  be 
generally  pleased  by  that  mode.  The  deputies  from  the 
wall  states  argued, -and  there  is  some  force  in  their  re  a- 


A 


(  101  ) 


soning,  that  when  the  people  voted,  the  large  states  evi¬ 
dently  had  the  advantage  over  the  rest,  and  without 
varying  the  mode,  the  interests  of  the  little  states  might 
he  neglected  or  sacrificed.  Here  is  a  compromise.— 
for  in  t  e  eventual  election,  the  small  states  will  have  the 
advantage:” 

After  this  view  of  the  constitution,  let  us  enquire, 
what  is  the  direct  object  of  the  proposed  alteration  in  the 
choice  of  president  ? 

To  render  more  practicable  and  certain  the  choice  by 
electors  : — -and  for  this  reason  ;  that  the  people  at 
large,  or  in  other  words,  that  the  great  states,  ought  to 
have  more  weight  and  influence  in  the  choice.  That  it 
should  be  brought  nearer  to  the  popular  and  carried 
further  from  the  federative  principle.  This  claim  we 
find  was  made  at  the  formation  of  the  constitution. — . 
1  he  great  states  naturally  wished  for  a  popular  choice 
of  first  magistrate:  This  mode  was  sanctioned  by  the 
example  ol  many  of  the  states  in  the  choice  of  governor. 
1  he  small  states  claimed  a  choice  on  the  federative  prin¬ 
ciple,  by  the  legislatures,  and  to  vote  by  states  ;  analo¬ 
gies  and  examples  were  not  wanting  to  sanction  this 
mode  of  election.  A  consideration  of  the  weight  and 
influence  of  a  president  of  this  union,  must  have  multi¬ 
plied  the  difficulties  of  agreeing  upon  the  mode  of  choice. 
But,  as  I  have  before  said,  by  mutual  concession,  they 
agreed  upon  the  present  mode,  combining  both  principles 
and  dividing  between  the  two  parties,  thus  mutually 
jealous,  as  they  could,  this  important  privilege  of  electing 
a  chief  magistrate. 

This  mode  then  became  established,  and  the  right  of 
the  small  states  to  elect  upon  the  federative  principle,  or 
by  states,  in  case  of  contingency  of  electoral  failure  of 
choice,  cannot  with  reason  and  fairness  be  taken  from 
them,  without  their  consent,  and  on  a  full  understanding 
of  its  operation  ;  since  it  was  meant  to  be  secured  to 
them  by  the  constitution,’ and  was  one  of  the  terms  upon 
which  they  b  came  members  of  the  present  confederacy; 
and  for  which  privilege  they  gave  an  equivalent  to  the 
great  states,  in  sacrificing  so  much  of  the  federative  prin¬ 
ciple,  or  state  equality. 

’1  he  constitution  is  nicely  balanced,  with  the  federa¬ 
tive  and  popular  principles  ;  the  senate  are  the  guardians 
of  the  former  and  the  house  of  representatives  of  the 
latter ;  and  any  attempts  to  destroy  this  balance,  under 


✓ 


(  102:  ) 


whatever  specious  names  or  pretences  tney  ma)  be 
presented,  should  be  watched  with  a  jealous  eye.  Per¬ 
haps  a  fair  definition  of  the  constitutional  power  of 
amending  is,  that  you  may  upon  experiment  so  modify 
the  constitution  in  its  practice  and  operation,  as  to  give 
it,  upon  its  own  principles,  a  more  complete  effect.  ■ 
But  this  is  an  attack  upon  a  fundamental  principle  es¬ 
tablished  after  a  long  deliberation,  and  by  mutual  con¬ 
cession,  a  principle  of  essential  importance  to  the  in¬ 
strument  itself,  and  an  attempt  to  arrest  from  the  smad 
states,  a  vested  right  ;  and,  by  it,  to  increase  the  power 
and  influence  of  the  large  states.  I  shah  not  pietend, 
sir,  that  the  parties  to  this  constitutional  compact,  cannot 
alter  its  original  essential  principles  ;  and  that  such  al¬ 
terations  may  not  be  effected  under  the  name  of  amend¬ 
ment  ;  but,  let  a  proposal  of  that  kind  come  forward 
in  its  own  proper  and  undisguised  shape  ;  let  it  be  fail  ly 
stated  to  congress,  to  the  state  legislatures,  to  the  people 
at  large  that  the  intention  is  to  change  an  important 
federative  feature  in  the  constitution,  which  change  in 
itself  and  all  its  consequences,  will  tend  to  a  consolida¬ 
tion  of  this  union,  into  a  simple  republic  ;  let  it  be  fairly 
stated,  that  the  small  states  have  too  much  agency  in  the 
important  article  of  electing  a  chief  magistrate  ,  and 
that  the  preat  states  claim  the  choice  ;  and  w  e  shall  tnen 
have  a  fair  decision.  If  the  senators  of  the  small  states, 
and  if  their  states  legislatures  will  then  quietly  part  w  ith. 
the  right  they  have,  no  person  can  reasonably  complain. 

Nothing  can  be  more  obvious,  than  the  intention  oi  t..e 
plan  adopted  by  our  constitution  for  choosing  a  president. 
The  electors  are  to  nominate  two  persons,  of  whom  tney 
cannot  know  which  wiii  be  president ;  this  circumstance 
not  only  induces  them  to  seiect  botn  from  the  bv.st  men  ; 
but  gives  a  direct  advantage  into  the  hands  of  the  small 
states  even  in  the  electoral  choice.  For  they  can  always 
select  from  the  two  candidates  set  up  by  tue  electors  o 
large  states,  by  throwing  their  votes  upon  their  fat  orite  , 
and  of  course  giving  him  a  majerity,  or,  if  the  electors 
of  the  large  states  should,  to  prevent  tins  effect,  scatte  r 
their  votes,  for  one  candidate,  then  the  electors  oi  the 
small  states  would  have  it  in  their  power  to  elect  a  vice 
president  So  shat  in  any  event,  the  small  states,  will 
have  a  considerable  agency  in  the  election.  But  it  the 
discriminating  or  designating  principle  is  carried,  as 
contained  in  this  resolution,  the  vnoie,  or  neail)  t  c 
whole  right  and  agency  of  the  small  states,  in  the  elec¬ 
toral  choice  of  chief  magistrate,  is  destroyed,  and  then 


(  103  ) 


chance  of  obtaining  a  federative  choice  by  states  if  not 
destroyed,  is  very  much  diminished. 

For  this  identical  purpose  is  the  principle  of  electoral 
discrimination  and  designation,  introduced  into  the  reso¬ 
lution  before  you  ;  for  the  same  purpose  is  the  number  of 
candidates  reduced  from  five  to  three, from  whom  the  house 
of  representatives  may  elect,  in  case  of  electoral  failure 
of  choice ;  that  is,  to  destroy,  or  diminish  the  agency  of 
the  small  states,  in  the  choice  of  president. 

For  what  purpose  else,  are  we  perpetually  told,  and  from 
all  parts  of  the  senate,  that  the  public  will  is  opposed,  by 
the  present  mode,  and  the  public  wn 'll  cannot  be  gratified, 
without  the  introduction  of  the  discriminating  principle  ? 

By  the  public  will  thus  mentioned,  the  gentlemen  mean 
the  will  of  a  popular  majority,  or,  the  will  of  the  great- 
states,  which  in  this  case,  I  repeat  it,  are  the  same.  How 
is  it  possible  for  the  gentlemen  to  increase  the  chances 
of  gratifying  this  description  of  the  public  will;  without 
decreasing  the  agency  of  the  small  states  ? 

The  whole  power  of  election  is  now  vested  in  the  two 
parties ;  numbers  and  states,  or,  great  and  small  states,  and 
it  is  demonstration  itself,  that  if  you  increase  the  power 
of  the  one,  in  just  such  proportion  you  diminish  that  of  the 
other.  Do  the  gentlemen  suppose  that  the  public  will, 
when  constitutionally  expressed  by  a  majority  of  states, 
in  pursuance  of  the  federative  principle  of  our  govern¬ 
ment,  is  of  less  validity,  or  less  binding  upon  the  commu¬ 
nity  at  large,  than  the  public  nuill  expressed  by  a  popular 
majority  ?  The  framers  of  your  constitution,  the  people 
who  adopted  it,  meant,  that  the  public  will ,  in  the  choice 
ol  a  president,  should  be  expressed  by  electors,  if  they 
could  agree,  and  if  not,  that  the  public  will  should  be  ex¬ 
pressed,  by  a  majority  of  the  states,  acting  in  their  fede¬ 
rative  capacity,  and  that  in  both  cases  the  expression  of 
the  public  will  should  be  equally  binding. 

It  is  pretended  that  the  public  will  can  never,  properly 
or  constitutionally,  be  expressed,  but  by  a  majority  of 
numbers,  ol  the  people,  or  of  the  house  of  representa¬ 
tives  ?  Ibis  may  be  a  pleasing  doctrine  enough  to  great 
states ;  but  it  is  certainly  incorrect.  Our  constitution  has 
given  the  expression  of  the  public  will,  in  a  variety  of 
instances,"  other  than  that  of  the  choice  of  president, 
into  very  different  hands  from  either  the  house  of  repre¬ 
sentatives  or  the  people  at  large.  The  president  and 
senate,  and  in  many  cases  the  president  alone,  can  ex- 


/ 


(  104  ) 


press  the  public  will,  in  appointments  of  high  trust  and 
responsibility,  and  it  cannot  be  forgotten  that  the  presi¬ 
dent  sometimes  expresses  the  public  will,  by  removals. 
Treaties,  highly  important  expressions  of  the  public  will, 
are  made  by  tne  president  and  senate  ;  and  they  are 
the  supreme  law  of  the  land.  In  the  several  states, 
many  great  offices  are  filled,  and  even  tne  cniei  magis¬ 
tracy  by  various  modes  of  election.  The  public  will  is 
sometimes  expressed  by  pluralities,  instead  of  majori¬ 
ties,  sometimes  by  both  branches,  of  the  legislatures,  and 
sometimes  by  one,  and  in  certain  contingencies,  elec¬ 
tions  are  settled  by  lot.  The  people  have  adopted  con¬ 
stitutions  containing  such  regulations,  and  experience 
has  proved  that  tney  are  well  calculated  to  preserve 
their  liberties  and  promote  their  happiness,  t  rom 
what  good,  or  even  pardonable  motive  then,  can  it  lie 
urged,  that  the  present  .mode  of  electing  our  president, 
has  a  tendency  to  counteract  the  public  will  ?  To  gen¬ 
tlemen  intend  to  destroy  every  federal  feature  in  this 
constitution  ? 

And  is  this  resolution  a  precursor  to  a  complete  con¬ 
solidation  of  the  union,  and  to  the  establishment  of  a 
simple  republic  .r — Or  will  it  suffice  to  break  flown  e^miy. 
federative  feature  which  secures  to  one  portion  of  the 
union,  to  the  small  states,  their  rights  ? 

I  am  not  without  my  fears,  Mr.  president,  that  this  is 
but  the  beginning  of  evils,  and  that  this  constitution,  the 
bulwark  of  the  feeble  members  of  the  confederacy  ;  the 
protection  of  the  weak  against  the  strong  ;  the  security 
of  the  small  against  the  great ;  the  last,  best  hope  of 
man,  with  a  view  to  stability  in  a  free  governme  nt,  and 
to  the  preservation  of  liberty  in  a  republic ;  is  destined 
to  undergo  changes,  and  suffer  innovations,  till  there 
be  no  residue  worth  preserving,  and  nothing  left,  which 
ambition  will  condescend  to  overturn. 

Time  will  not  permit  me  to  dwell  any  longer  on  this 
part  of  my  argument.  But  I  am  deceived,  sir,  if  the 
view  I  have  now  taken  of  the  constitution  does  not  shew 
most  obviously,  that  in  its  formation  there  was  a  strug¬ 
gle  between  the  great  and  small  states,  with  respect  to 
many  of  its  principles  and  leading  features.  And  that 
the  participation  in  the  election  of  a  chief  magistrate, 
clearly  secured  to  them  by  the  constitution,  will  receive 
a  deadly  blow  by  the  adoption  of  the  proposed  amend¬ 
ment. 


(  105  ) 


It  can  be  no  contradiction  to  my  ideas  upon  the  sub¬ 
ject,  if  we  have  heard  nothing  of  state  conflicts,  in  the 
administration  of  this  government.  The  great  states 
have  never,  till  now,  directly  attempted  to  violate  the 
sanctuary  of  the  small,  and  despoil  them  of  their  rights ; 
had  this  been  earlier  attempted,  we  should  have  heard  and 
seen  the  same  jealousy  awakened,  and  the  same  opposi¬ 
tion  exerted. 

The  conflict  could  happen  in  no  other  way,  than  by  an 
attack  from  the  large  states.  We  had  neither  the  desire 
nor  ability  to  injure  them,  and  we  now  ask  no  favors,  but 
their  permission  to  enjoy,  in  peace  and  safety,  the  rights 
conceded  to  us  by  themselves,  and  secured  by  a  solemn 
constitutional  compact. 

We  have  been  told  by  a  gentleman  from  Virginia, 
that  it  would  be  impolitic  in  us  to  rouse  the  great  states. 
I  shall,  at  present,  take  no  further  notice  of  this  warning, 
given  to  us,  no  doubt,  in  the  full  exercise  of  benevolence  ; 
but  to  request  the  small  states  to  preserve  it  in  constant 
recollection.  It  may  induce  them  not  hastily  to  part  with 
constitutional  security. 

There  are  some  other  points  of  light,  in  which  I  wish 
to  place  the  subject  before  us. 

The  constitution  is  of  recent  date  ;  it  was  formed  by 
the  mutual  concessions  of  conflicting  parties,  and  balan¬ 
ced  with  a  view  to  the  securing  of  all.  Experience, 
alone  can  test  its  utility,  and  time  and  practice  discover 
its  faults.  It  is  a  sound  position  that  you  should  never 
attempt  an  alteration  in  an  instrument  so  complicated, 
and  calculated  to  serve  so  many  various  and  opposite  in¬ 
terests,  without  being  able,  by  the  test  of  experiment,  to 
discern  clearly  the  necessity  of  alteration,  and  without  a 
moral  certainty,  that  the  change  shall  not  only  remove  an 
existing  evil,  but  that  it  shall  not  produce  any  itself.  The 
article  in  the  constitution  establishing  the  mode  of  elec¬ 
ting  a  chief  magistrate  ;  and  which  is  now  proposed  to 
be  altered,  was  undoubtedly  one  of  the  most  difficult 
parts  of  the  whole,  at  its  formation.  I  am  convinced, 
sir,  that  the  public  mind  is  not  sufficiently  impressed 
with  the  difficulty  of  adopting,  not  only  an  unexcep¬ 
tionable,  but  even  a  tolerable  and  practicable  mode  of 
electing  a  chief  magistrate  ;  possessing  such  important 
and  extensive  powers,  as  are  constitutionally  vested  in 
the  president  of  the  United  States.  An  attempt  to  de¬ 
tail  the  number  and  magnitude  of  his  powers,  to  this 

O 


(  106  ) 


senate,  would  be  impertinent :  But  it  must  and  will  be 
acknowledged  by  all,  that  the  president  is  vested  with 
powers  vastly  extensive  and  important,  and  that  he  will 
bring  with  him  into  the  government  more  or  less  of  state 
politics  and  state  prejudices,  and  these  facts,  to  which 
may  be  added  the  probability  that  he  will  be  taken  from 
a  large  state,  must  have  increased  the  difficulties  of  the 
convention,  in  fixing  on  a  mode  of  choice . 

How  often  have  contests,  wars  and  bloodshed,  the 
destruction  of  confederacies,  of  liberty  and  of  vast  por¬ 
tions  of  the  human  race,  arisen  from  the  election  of 
chief  magistrates  ?  When  we  consider  that  the  powers 
vested  in  the  president  of  this  union,  are  sufficiently  im¬ 
portant  to  excite  the  avarice  and  ambition  of  the  human 
heart,  its  two  most  active  principles,  to  gain  possession 
of  the  office  ;  when  we  consider  the  difference  of  senti¬ 
ment,  habit  and  interest  in  this  country  ;  state  pride  and 
state  jealousy,  which  could  never  be  laid  asleep  ;  the 
difficulties  of  fixing  upon  a  proper  mode  of  election,  must 
be  also  infinitely  multiplied.  And  yet  this  article  is  now 
selected  for  alteration.  All  the  amendments  which  have 
been  hitherto  adopted,  went  to  some  general  explana¬ 
tion  upon  very  general  principles, not  changing  but  rather 
expounding  the  constitution. 

This,  as  I  have  before  said,  is  taking  up  the  most 
difficult  and  most  important  article  in  the  constitution, 
both  in  relation  to  rights  and  principles.  But  it  is  said 
that  experience  has  shewn  us  the  necessity  of  an  altera¬ 
tion  in  this  article  ;  that  an  evil  has  been  found  in  prac¬ 
tice  to  grow  out  of  the  constitutional  provision,  which 
calls  imperiously  for  remedy. 

At  the  last  election  of  president  two  persons  had  an 
equal  number  of  votes,  and  that  number  was  a  majority 
of  the  votes  of  all  the  electors  appointed,  which  circum¬ 
stance  gave  the  house  of  representatives  a  constitutional 
right  to  select  one  of  them  for  president.  In  exercising 
this  constitutional  right,  they  voted  by  states,  and  there 
was  at  first  a  division,  no  choice  being  made  until  the 
sixth  day ;  when  an  election  was  effected,  of  the  very  man 
whom  the  great  states,  and  the  advocates  otthis  resolution, 
wished. 

It  ought  to  be  noted  here,  that  although  they  voted  by- 
states,  yet  it  happened,  in  this  division,  that  a  majority- 
in  point  of  numbers,  voted  for  the  person  president,  whc 
eventually  became  vice  president.  As  to  intrigue,  by 


(  107  ) 


cither  of  the  candidates,  or  by  their  friends,  I  know  of 
none ;  the  sentiments  and  conduct  of  the  vice  president, 
as  published,  were  perfectly  fair  and  honorable,  contain¬ 
ing  a  declaration  of  his  wishes  not  to  stand  in  the  way  of 
the  other  candidate. 

After  the  view  of  the  constitution  which  we  have  taken, 
and  comparing  this  fact,  or  set  of  facts,  with  the  provi¬ 
sions  for  electing  a  president,  we  shall  really  be  at  a  loss 
to  find  out  the  mighty  evil,  which  the  experience  of  this 
election  has  discovered,  and  which  is  said  to  call  so  im¬ 
periously  for  a  remedy.  But  the  advocates  of  this  reso¬ 
lution  have  had  the  goodness  to  put  their  finger  on  the 
spot.  They  say,  that  in  the  certificates  of  the  electors, 
Mr.  Jefferson’s  name  stood  first;  this  is  called  a  sort  of 
record  testimony,  and  in  addition,  some,  if  not  all  the 
electors  said  they  meant  to  elect  Mr.  Jefferson  president 
and  Mr.  Burr  V.  President ;  and  this  is  declared  to  be  the 
public  will,  expressed  by  the  constitutional  organ,  he  elec¬ 
tors.  Notwithstanding  this  expression  of  the  Jiublic  will ,  say 
the  gentlemen,  a  large  portion  of  the  house  of  represen¬ 
tatives  withstood  and  opposed  the  public  will ,  for  the 
space  of  six  days,  and  wilfully  voted  for  the  man  to  be 
president,  who,  they  knew  by  the  evidence  just  men¬ 
tioned,  wa«*  meant  to  be  vice  president.  One  gentleman 
(Mr.  Wright)  lias  said,  that  if  he  had  been  a  member 
of  that  house,  possessing  such  sentiments  upon  the  sub¬ 
ject,  as  he  now  does  ;  such  voting  would  in  him  have 
amounted  to  the  crime  of  perjury,  or  words  to  the  same 
effect  ;  I  mean  to  quote  his  ideas,  as  expressed,  and  be¬ 
lieve  I  have  given  nearly  his  very  words. 

And  it  is  added,  that  thus  there  was  imminent  danger 
of  a  person  being  imposed  upon  the  United  States  as  chief 
magistrate,  who  was  not  originally  intended  for  that  high 
office,  and  that  civil  war  must  have  been  the  consequence . 
And,  as  is  common  in  such  cases,  the  picture  is  filled:  in 
(lie  back  ground,  with  brother  raising  his  murderous 
hand  against  brother,  father  against  son,  and  with  an  af¬ 
flicting  group  of  et  ceteras :  and  to  avoid  a  repetition  of 
this  tremendous  crisis ,  as  it  is  called,  the  present  resolu¬ 
tion,  it  ic  said,  must  pass. 

Let  this  statement  of  facts  be  kept  in  view,  while  we 
examine  the  duties  assigned  by  the  constitution  to  the  se¬ 
veral  agents  concerned.  The  duty  of  the  electors  is  pre¬ 
cisely  defined.  They  are  each  to  bring  forward  two  can¬ 
didates  fully  qualified  for  president,  because  they  cannot 


(  105  ) 


know  at  the  time  of  giving  their  ballots  upon  which  the 
choice  will  fall.  The  circumstance  of  two  having  a  ma¬ 
jority,  and  both  being  equal  in  number  of  votes,  is  an  ex¬ 
pression  of  the  public  will,  through  the  only  constitution¬ 
al  organ,  by  which,  in  this  case,  the  public  will  can  be  ex¬ 
pressed,  that  both  had  the  requisite  qualifications.  The 
public  will,  then,  was  in  this  instance  clearly  and  unequi¬ 
vocally  expressed,  by  a  constitutional  and  numerous  ma¬ 
jority,  that  both  candidates  were  worthy  of  the  office  ; 
but  here  the  expression  of  the  public  will  ceased,  and 
which  of  these  two  should  be  president,  was  now  to  be 
decided  by  another  constitutional  organ  that  is,  by  the 
house  of  representatives  voting  by  states. 

The  framers  of  the  constitution  so  intended,  and  the 
people  who  adopted  it  have  so  ordained,  that  their  will  in 
this  case  should  be  expressed  by  a  majority  of  the  states, 
acting  by  their  representation  in  the  house  of  representa¬ 
tives.  The  right  of  selection,  is  a  right  complete  in 
itself,  to  be  exercised  by  these  second  electors ;  uninflu¬ 
enced  by  any  extraneous  consideration,  and  governed 
onlv  by  their  own  sense  of  propriety  and  rectitude.  The 
opinion  of  the  people  had  been  expressed,  by  the  electors, 
but  it  only  reached  a  certain  point,  and  then  was  totally 
silent  as  to  which  of  the  two  should  be  president,  and 
their  sense  upon  this  point  could  only  be  collected,  through 
their  constitutional  organ,  the  house  of  representatives 
voting  by  states.  Any  interference  of  the  first  electors, 
or  of  an  individual  or  individuals,  must  be  informal  and 
improper.  The  advice  of  sensible  and  candid  men,  as 
in  every  other  case,  might  be  useful ;  but  could  have  no 
binding  force  whatever.  The  first  electors  had  no  right 
to  choose  a  vice  president.  To  claim  it  was  overstep¬ 
ping  their  duty,  and  arrogating  to  themselves  a  power, 
not  given  to  them  by  the  constitution. 

If  there  is  any  thing  in  this  whole  transaction,  which 
has  the  most  distant  appearance  of  a  breach  of  duty,  it 
was  in  the  electors,  by  attempting  to  designate,  and  by 
exercising  the  important  office  of  an  elector,  under  the 
influence  of  improper  motives  ;  that  is,  by  officiously  at¬ 
tempting  to  decide  the  question,  which  of  the  two  per¬ 
sons  was  proper  for  vice  president,  which  they  were  con¬ 
stitutionally  incompetent  to  decide.  By  this  conduct 
they  attempted  to  break  down  an  important  guard  pro¬ 
vided  by  the  constitution,  and  improperly  to  release 
themselves  from  its  obligations,  which  made  it  their 


(  109  ) 


duty  to  select  two  men  qualified  to  be  president.  But 
if  there  can  be  a  shadow  of  reason  in  this  claim  of  the 
electors  to  designate  under  the  present  constitutional  re¬ 
gulations,  of  which,  to  doubt,  seems  to  be  so  heinous, 
what  necessity  can  there  be  for  this  amendment  ?  The 
object  of  the  amendment,  or  certainly  its  chief  object,  is 
to  establish  the  designating  principle ;  but  why  this,  if  it 
can  already  be  effected  by  the  simple  mode  of  placing 
one  name  first  on  the  ballot,  which  is  so  easy  to  be  done, 
that  it  can  scarcely  be  avoided  ?  And  if  done,  by  the 
doctrine  of  gentlemen,  it  is  so  far  binding  on  the  house 
of  representatives  that  if  they  even  doubt,  they  are 
damned  ? 

The  fact  certainly  was,  that  at  the  last  election,  the 
great  states  brought  forward  the  two  candidates  ;  they 
were  both  of  the  same  political  sentiments ;  this,  they 
had  a  constitutional  right  to  do  ;  but  it  now  seems  that 
their  language  to  the  small  states  was  ;  u  because  you  will 
not  give  up  your  constitutional  rights  to  us,  and  let  us  go  on 
and  designate,  we  will  stir  up  a  civil  war,  and  lay  the 
blame  to  you.  And  ol  this  improper  conduct  of  ours  we 
wili  take  the  advantage,  and  obtain  an  alteration  of  the 
constitution,  which  will  hereafter  gratify  us  in  every 
respect.”  A  gentleman  from  Maryland  (Mr.  Smith,) 
had  said,  that  he  heard,  though  he  could  not  prove  it. 
that  the  federal  majority  at  the  time  of  the  last  election, 
contemplated  making  a  law,  authorizing  or  appointing 
some  person  as  president,  in  case  no  choice  had  been 
made  by  the  house  of  representatives.  I  was  then,  sir, 
a  member  of  the  government,  and  know  nothing  of  such 
a  project,  it  might  have  been  so,  but  supposing  it  was, 
what  then  ?  Why  says  the  gentleman,  the  person  thus 
appointed  could  not  have  kept  his  head  on  his  shoulders 
24  hours  ;  and  this  would  have  made  acivil  war.  If  the 
majority  now  should  contemplate  a  measure,  which  the 
constitution  does  not  authorise,  as  it  clearly  did  not  au¬ 
thorise  the  measure  suspected  by  the  gentleman,  though 
he  cannot  prove  it ;  the  best  thing  in  the  world  for  them 
to  do,  would  be  to  give  it  up,  without  any  attempt  to  ef¬ 
fect  it,  as  it  seems  the  federal  majority  did.  But  what 
argument  all  this  can  afford  in  favor  of  the  amendment, 
or  why  it  was  mentioned,  in  this  debate,  is  beyond  my 
comprehension.  In  the  result  of  the  last  election,  the 
great  states  and  the  ruling  political  party,  were  certain¬ 
ly  gratified,  and  there  does  not  appear  the  least  reason- 


(  no  ) 

able  ground  of  complaint  against  the  small  states,  in  the 
use  of  their  constitutional  rights  on  the  occasion.  All 
Support  therefore  to  the  amendment,  drawn  from  that 
transaction,  must  fail. 

I  have  said,  that  the  article  fixing  the  mode  of  elec¬ 
ting  a  chief  magistrate  was,  from  its  nature,  attended 
with  many  difficulties.  A  more  strict  enquiry  into  the 
constitutional  mode,  and  a  comparison  of  it,  in  some 
other  and  more  particular  points,  with  the  proposed  al¬ 
teration,  will  be  useful  in  forming  an  opinion  of  their 

relative  merits.  . 

As  the  constitution  stands,  each  elector  is  to  write  the 
names  of  two  persons  on  a  piece  of  paper,  called  a  ballot. 
Either  of  the  two  persons  thus  voted  for  may  be  presi¬ 
dent,  and  the  elector  cannot  know  which :  this  affords 
the  most  powerful  inducement  to  vote  for  two,  both  of 
whom  are  qualified  for  the  very  important  office.  For 
it  is  not  only  uncertain  upon  whom  the  choice  will  fall  at 
first,  but  the  one  remaining  will  certainly  be  president, 
upon  any  contingency  which  shall  remove  or  incapacitate 
the  first.  The  convention  seem  to  have  selected  a  mode 
of  proceeding  the  most  simple,  the  least  liable  to  accident 
and  the  best  calculated  to  insure  the  main  object,  that  is, 
that  both  should  be  really  worthy  of  the  trust.  If  one 
candidate  wishes  to  make  interest  with  the  electors,  as 
each  must  vote  for  two,  it  will  be  impossible  for  bribery 
or  intrigue  to  succeed  ;  for,  without  corrupting  the  whole 
or  certainly  many  more  than  half,  he  may  be  defeated 
by  the  other  candidate  on  the  ballot.  1  his  is,  peihaps, 
the  most  effectual  bar  to  intrigue,  that  was  ever  contrived ; 
for,  unless  all,  or  a  great  proportion  of  the  electors  arc 
corrupted,  an  extreme  case  of  depravity  not  probable  in 
any  country,  intrigue  can  have  no  assurance  of  success. 
The  danger  and  difficulty,  which  must  always  attend 
such  an  important  election,  as  that  of  chief  magistrate  ol 
the  United  States,  was  meant  to  be  avoided,  by  diminish¬ 
ing  the  chances  of  its  frequent  recurrence.  So  two  per¬ 
sons  are  placed  in  condition  to  act  as  president  in  suc¬ 
cession,  to  prevent  both  the  evils,  of  vacancy,  and  a  re¬ 
currence  of  choice  more  frequently  than  once  in  four 
years.  And  it  seems  merely  incidental  to  this  second 
person,  to  be  called  vice  president,  and  neither  the  first 
nor  second  description  of  electors  can  have  any  right  to 
vote  for  him  as  such,  indeed  he  can  have  no  existence  till 
the  first  character  is  designated  and  then  seems  to  be 


(  in  ) 


discovered,  not  elected.  The  senate,  in  case  of  an  equal 
number  of  votes  for  two  or  more  remaining  persons,  after 
the  president  is  elected,  are  vested  with  authority  to 
choose  a  vice  president,  for  as  such  he  is  to  preside  over 
this  body,  and  this  body  therefore  seems  to  be  the  only 
constitutional  organ  to  designate  him.  Both  the  other 
descriptions  of  electors  have  nothing  to  do  with  such  a 
character  or  office ;  but  are  confined  to  act  with  a  single 
reference  to  the  character  and  office  of  president ;  and  are 
trusted  with  no  power  to  give  any  opinion  of  the  charac¬ 
ter  or  qualifications  of  a  vice  president.  And  it  is  re¬ 
markable,  that  there  are  no  appropriate  qualifications 
made  necessary  by  the  constitution,  for  a  vice  president ; 
but  every  qualification  has  reference  to  president.  There 
is  another  important  feature  in  this  part  of  the  constitu¬ 
tion.  It  was  known  by  the  convention,  that  in  this  coun¬ 
try,  in  common  with  all  others,  where  there  is  freedom  of 
opinion  and  of  speech,  there  would  be  parties.  They  like¬ 
wise  knew,  that  the  intolerance  of  the  major,  or  ruling 
sect  and  political  party,  was  frequently  exercised  upon 
the  minor  party ;  and  that  the  rights  of  the  minority  ought 
to  be  protected  to  them. 

As  well  then,  to  secure  the  rights  of  the  minority,  as 
to  check  the  intolerance  of  the  majority,  they  placed  the 
majority  in  jeopardy,  if  they  should  attempt  at  grasping 
all  the  benefits  of  a  president  and  vice  president  within 
themselves,  to  the  total  exclusion  of  the  minority.  This 
very  case  which  happened  at  the  last  election  was  con¬ 
templated,  in  which  the  majority  attempted  totally  to 
exclude  the  minority  from  any  participation.  The  lan¬ 
guage  of  the  constitution  to  such  majorities  is,  “  take 
care  that  you  aim  not  at  too  much,  for  if  you  do,  it  is 
put  into  the  power  of  the  minority  to  check  you,  and  by 
a  judicious  disposition  of  their  few  votes,  determine  the 
choice  of  president.”  To  avoid  this  event  the  majori¬ 
ty  will  probably  be  cautious  in  the  exercise  of  power  ; 
and  thus  the  rights,  the  proper  weight  and  influence  of  a 
minority  are  secured  against  the  conduct  of  the  majori¬ 
ty,  which  is  certainly  liable  to  be  intolerant  and  oppres¬ 
sive.  In  this  respect  the  spirit  of  the  constitution  is, 
political  moderation.  And  it  is  clear  to  my  mind,  that 
the  experience  of  the  last  election  has  taught  a  lesson  to 
all  majorities,  which  will  in  future  completely  secure 
them  from  again  incurring  a  similar  risk.  I  recollect 
well,  that  it  was  thought  probable,  when  the  electoral 


(  H2  ) 


votes  were  given,  that  Mr.  Burr  would  have  a  vote  or 
two,  in  some  of  the  eastern  states.  If  he  had  received 
but  one,  he  would  have  been  by  an  electoral  choice,  the 
constitutional  president.  If  the  majority  in  future  have 
powers  of  recollection,  they  will  undoubtedly  avoid  the 
evil,  if  it  is  one,  which  happened  at  the  last  election., 
with  such  unfailing  certainty,  that  there  will  be  no  need 
of  the  remedy  proposed  by  the  amendment.  But  the 
majority  say,  if  their  votes  are  so  scattered  for  one  can¬ 
didate  as  to  avoid  this  danger,  that  another  will  be  in¬ 
curred  ;  and  that  is,  the  minority  will  elect  a  vice  presi¬ 
dent.  The  language  of  the  constitution  to  them,  is 
again,  “  that  this  was  meant  as  a  security  for  the  mino¬ 
rity  against  the  majority.”  But  the  majority  exclaim 
against  both  these  provisions,  as  very  unreasonable  in¬ 
deed  :  “  what,”  say  they,  “  are  minorities  to  govern  ma¬ 
jorities  ?”  The  answer  of  the  constitution  is  “  no,  but 
their  due  weight  and  influence  shall  be  secured  to  them, 
and  the  danger  of  your  intolerance  guarded  against.”— 
For  the  security  of  small  states  and  minorities,  there  is, 
in  the  constitution  a  mixture  of  the  federative  with  the 
popular  principles.  And  as  it  is  vrell  known  that,  when 
popular  majorities  alone  prevail,  and  exercise  power  un¬ 
controlled  by  constitutional  checks,  the  minorities,  who 
generally  possess  their  proportion  of  integrity  and  virtue, 
are  overwhelmed,  and  liberty  itself,  by  the  same  means, 
destroved  ;  so  it  is  in  kindness  to  both  parties,  to  the 
country  and  to  humanity,  that  these  wholesome  checks 
are  constitutionally  provided.  Had  tne  majority  or  the 
great  states,  been  willing,  fairly  to  have  submitted  to  the 
constitutional  checks  in  the  last  election,  no  evil  could 
have  happened.  And  it  is  remarkable  that  the  consti¬ 
tution  completely  protects  them,  as  long  as  they  obey  its 
precepts,  in  the  creation  of  which  they  had  an  agency, 
and  to  which  they  have  solemnly  agreed.  To  prove  that 
I  am  correct  in  these  ideas,  I  not  only  refer  to  the  con- 
/  stitution  but  to  the  secretary  of  state  (Mr.  Madison.) 

/  In  the  Virginia  debates,  volume  1.  page  96,  lie 

says,  “  But  on  a  candid  examination  of  history,  we 
shall  find  that  turbulence,  violence  and  abuse  of  power 
by7  the  majority  trampling  on  the  rights  oj  the  minority-, 
have  produced  factions  and  commotions  which,  in  repub¬ 
lics,  have  more  frequently  than  any  other  cause  produ- 
1  ced  despotism.  If  we  go  over  the  whole  history  of  ancient 
V  and  modern  republics,  we  shall  find  their  destructions 


(  113  ) 


to  have  generally  resulted  from  those  causes.  If  we  c 
sider  the  peculiar  situation  of  the  United  States, 
what  are  the  resources  of  that  diversity  of  sentime 
which  pervades  its  inhabitants,  we  shall  find  great  C 
ger  that  the  same  causes  may  terminate  here,  in 
same  fatal  effects,  which  they  produced  in  those  rep 
lies.  This  danger  ought  to  be  wisely  guarded  again 
Perhaps,  in  the  progress  of  this  discussion  it  will  app 
that  the  only  possible  remedy  for  those  evils,  and  me 
of  preserving  and  protecting  the  principles  of  republic 
ism,  will  be  found  in  that  very  system,  which  is  now 
claimed  against  as  the  parent  of  oppression.” 

Mr.  President,  it  has  often  been  said  by  the  discern¬ 
ing  and  judicious  of  this  and  other  countries,  that  our 
constitution,  for  its  brevity,  its  comprehensiveness,  its 
perspicuity,  and  the  political  skill  contained  in  it,  was  the 
best  state  paper  extant.  I  believe  all  this  and  even  more 
is  a  tribute  justly  due  to  its  merits  ;  and  lam  persuaded 
that  the  article  which  fixes  a  mode  for  the  choice  of  a 
chief  magistrate,  stands  most  prominent  among  its  excel¬ 
lencies. 

Let  us  now,  sir,  examine  and  compare  the  merits  of 
the  amendment  with  a  special  reference  to  this  last  view 
we  have  taken  of  the  constitutional  provision. 

The  amendment  authorises  the  electors  to  vote  for  a 
president,  and  for  a  vice  president  by  specific  designa¬ 
tion.  Is  ambition  in  your  country  ?  Here  is  a  direct  and 
inviting  object  for  its  operation. 

Is  the  integrity  of  your  electors  assailable?  You  place 

it  here  in  the  most  encouraging  attitude  for  an  assault _ . 

A  fear  of  detection,  and  a  sense  of  shame,  upon  the  ex¬ 
posure  of  an  improper  action,  has  been  perhaps,  a  better 
security  against  political  errors  or  crimes,  than  all  the 
moral  virtues  united,  when  the  temptation  has  been  at¬ 
tended  with  an  impossibility  of  detection.  An  intrigue 
with  an  elector,  can  be  carried  on  without  much  danger 
of  detection  ;  but  when  your  election  is  carried  into  the 
house  of  representatives,  besides  the  ordinary  weight  of 
character  in  favor  of  the  members  of  that  house  a  detec¬ 
tion  of  an  intrigue  with  a  candidate  is  almost  certain.  It  *J 
will  be  recollected,  that  at  the  last  election,  two  or  three 
members  held  the  choice  perfectly  in  their  own  hands.  1 
If  I  mistake  not,  three  gentlemen,  that  is,  a  member  from 
New  Jersey,  a  member  from  Vermont,  and  one  from 
either  Maryland,  Delaware,  or  Tennessee,  could  have 

P  •  7 


(  114-  ) 

Q-iven  a  president  to  the  United  States,  dhe  particular 
gentlemen  mentioned  were  above  suspicion  of  bribery ; 
but  in  addition  to  this  circumstance,  if  they  had  in  the 
contest,  gone  over  from  improper  motives,  or  under  the  ' 
influence  of  bribery,  a  detection  was  certain. 

This  will  remain  forever,  the  criterion,  as  it  respects 
the  relative  danger  of  intrigue  and  bribery,  in  the  two 
modes  of  choice.  And  the  amendment  is  avowedly  in¬ 
tended  to  secure  a  choice  by  electors,  and  to  prevent  a 
resort  to  the  house ;  because  says  the  gentleman  from 
Virginia,  (Mr.  Taylor,)  “  If  you  permit  the  election  to 
p-o  ffito  the  house,  there,  are  small  states,  and  minori¬ 
ties,  and  all  the  evils  of  a  diet  election  meaning,  that 
corruption  must  be  the  consequence.  But  he  says,  “  let 
there  be  a  divided  election,  by  the  electors,  meeting  b\ 
states  separately,  and  you  lessen  the  tendency  to  corrup¬ 
tion.”  This  may  look  plausible  in  theory,  but  I  thmn 

practice  will  shew  its  fallacy. 

It  may  be  better  for  the  electors  to  meet  by  states, 
than  for  all  to  be  together,  but  this  can  never  prove  that 
they  are  less  liable  to  corruption  than  the  house  of  re¬ 
presentatives  ;  which  is  the  only  point  in  question. 

The  manner  of  electing  the  vice  president,  as  pro¬ 
posed  by  the  amendment,  not  only  invites  ambition  to  an 
unchecked  operation ;  but  exposes  us  to  the  selection  of 
a  less  important,  and  more  unfit  person,  than  the  consti¬ 
tutional  provision.  In  addition  to  his  importance  in  the 
government  arising  from  his  incidental  succession  to  the 
chief  magistracy,  the  vice  president  is  ex-officio,  Presi¬ 
dent  of  the  senate,  and  gives  a  direct  influence,  to  the 
state  from  which  he  is  chosen,  of  a  third  vote  in  this 
body,  in  all  cases  of  equal  division,  which  are  usually  the 
cases  of  most  importance.  Besides,  his  influence  as 
presiding  officer  is,  perhaps,  more  than  equal  to  the 
right  of  a  vote.  It  becomes  therefore  peculiarly  impor¬ 
tant  to  the  small  states,  and  to  minorities,  whose  secu¬ 
rity  rests  in  this  body,  not  only  that  their  influence  in 
the  election  of  vice  president  should  not  be  diminished ; 
but  that  no  measure  be  adopted,  which  may  tend  to 
bestow  the  office  upon  an  unworthy  character.  By  the 
proposed  amendment,  this  character  must  necessaiily 
become  a  sort  of  make-weight,  and  stepping-stone  for 
the  presidency. — As  in  recruiting  for  an  army,  a  man, 
active,  and  of  a  particular  cast  of  character,  but  not  very 
proper  for  a  commander  in  chief,  is  employed  to  obtain 


(  H5  ) 


recruits,  and  upon  condition  that  he  obtains  a  given  num¬ 
ber,  is  to  be  rewarded  with  a  serjeant’s  warrant ;  so  in 
this  case,  the  man  who  can  procure  a  given  number  of 
votes  for  president,  will  be  encouraged  to  hope  for  the 
vice-presidency ;  and  where  will  such  characters  be 
sought  after?  In  Delaware  or  Rhode  Island?  No  sir, but 
in  the  great  states  ;  there  the  recruiting  talents  will  be 
put  in  operation,  because  the  number  of  recruits,  or  votes, 
will  be  sufficient  to  test  his  active  and  recruiting  merits. 
And  thus  the  office  of  vice  president  will  be  sent  to  mar¬ 
ket,  with  hardly  a  possible  chance  to  meet  an  honest 
purchaser. 

I  have  already  remarked  upon  the  alteration  made  by 
the  senate,  in  the  resolution  passed  by  the  house  of  re¬ 
presentatives,  changing  the  number  five  to  three.  But 
one  addition  made  this  morning,  deserves  attention ;  I 
mean  that  which  authorises  the  vice  president  to  admi¬ 
nister  the  government,  in  case  neither  the  first  nor  the 
second  constitutional  electors  effect  a  choice  of  presi¬ 
dent. 

This  is  anew  principle,  and  its  operation  is  more  un¬ 
certain,  than  that  of  any  other ;  art  of  the  proposed  amend¬ 
ment.  Viewing  it  in  one  point  of  light,  it  may  be  thought 
to  confer  a  new  power  upon  the  senate  ;  that  of  giving 
a  president  to  the  union.  And  it  is  said,  that  this  part 
will  recompense  the  small  states,  who  have  the  ascen¬ 
dency  in  the  senate,  for  the  injury  inflicted  by  the  other 
parts  of  the  amendment.  If  it  be  true,  that  the  last  part 
restores  all  which  the  forme  parts  have  taken  away  from 
us,  it  is  inconceivable,  why  any  man  can  wish  to  pass  a 
resolution,  the  parts  of  which  thus  mutually  destroy  each 
other.  It  is  possible,  that  by  the  force  of  intrigue  and 
faction,  the  electors  may  be  induced  to  scatter  their  votes 
for  both  president  and  vice  president,  in  such  manner,  as 
to  present  several  candidates  to  the  house  for  president 
and  two  or  more  to  the  senate  for  vice  president.  In 
which  case  the  senate  might  immediately  choose  or 
select  a  vice  president.  In  this  state  of  things,  there 
is  an  opportunity  afforded  for  an  intrigue,  of  a  very  ex¬ 
tensive  and  alarming  nature.  The  senate,  I  mean  a  ma¬ 
jority  of  them,  might  wish  that  the  man  whom  they  had 
elected  vice  president  should  administer  the  government 
and  if  the  house  could  be  prevented  from  agreeing,  their 
wishes  would  be  gratified.  The  facility  of  preventing 
over  that  of  producing  a  choice  is  very  obvious. 


C  H6  ) 


\ 


A  bold  address  may  be  made  to  any  member  of  the 
house,  without  wounding  his  pride,  or  offending  his  mo¬ 
rality,  to  adhere  to  his  candidate,  and  not  change  his 
vote  so  as  to  effect  a  choice.  He  can  be  told  that  there 
is  no  danger  of  leaving  the  United  States  without  a  presi¬ 
dent,  as  there  is  one  already  chosen  to  his  hand,  by  the 
senate  ;  and  this  person  may  be  more  the  object  of  his 
wishes,  than  any  of  the  other  candidates,  his  favorite  ex¬ 
cepted.  In  this  process  the  senate  may  give  a  president 
to  the  United  States.  But  if  the  probability  of  such  a 
process  and  such  an  event  is  encreased  by  the  amendment 
of  this  morning,  it  cannot  certainly  greatly  recommend 
it.  For  myself  I  wish  for  no  alteration  in  the  constitu¬ 
tion,  not  even  if  its  operations  were  directly  in  favor  of 
the  small  states,  more  especially  if  such  a  favor  is  to  be 
derived  through  a  sort  of  double  conspiracy  of  intrigue  ; 
in  the  first  place  to  operate  on  the  electors,  and  then  on 
the  house  of  representatives.  It  seems  to  me,  that  the 
small  states  had  better  be  contented  to  enjoy  the  rights 
now  secured  to  them  by  the  constitution,  which  they  can 
honestly  do,  rather  than  submit  to  a  deprivation  of  their 
rights,  for  the  sake  of  dishonestly  obtaining  a  restoration  of 
them.  We  may  charitably  and  safely  conclude  that  the 
majority  do  not  intend,  by  this  part  of  the  amendment, 
to  expose  the  country  to  such  a  scene  of  iniquity.  And 
the  uncertainty  of  its  operations,  alone,  is,  in  my  mind, 
a  sufficient  ground  for  rejection.  However  the  opera¬ 
tion  of  this  part  of  the  amendment  may  appear  in  theory 
as  to  other  points,  it  seems  to  me,  that  in  one  point  all 
must  agree,  and  that  is,  when  the  house  of  representa¬ 
tives  knowr  that  the  United  States  will  be  left  without 
an  executive  magistrate,  in  case  they  do  not  agree  ; 
this  awful  responsibility,  will  speak  in  a  voice  too  loud 
for  the  hardihood  of  party  entirely  to  disregard.  And 
may  not  I  suggest,  without  giving  offence,  that  the  ope¬ 
ration  of  this  very  responsibility,  has  been  proved  at  least 
in  some  degree  in  the  proceedings  of  the  last  presidential 
election  ? 

If  this  last  mentioned  security  be  worth  preserving,  it 
follows  of  course,  that  the  part  of  the  amendment  allud¬ 
ed  to,  ought  not  to  pass. 

There  is  another  view  of  the  constitution,  which  has  a 
reference  to  the  general  subject  before  us  :  and  that  is, 
the  caution  exhibited  with  respect  to  the  introduction  of 
amendments.  In  an  instrument  so  important,  and  con- 


C  117  ) 


taining  many  features  new,  if  not  to  the  world  at  least 
to  ourselves,  although  we  might  approve  of  its  principles ; 
yet  experience  might  discover  errors  as  to  the  mode  de¬ 
vised  for  carrying  those  principles  into  effect.  Hence 
it  was  the  part  of  wisdom  and  caution  to  provide  for 
such  alterations  in  practice  as  would  give  the  fairest  ope¬ 
ration  to  principles,  without  incurring  the  confusion  and 
agitation  incidental  to  a  general  convention.  But  lest 
the  daring  and  restive  spirit  of  innovation  should  injure 
or  destroy  under  the  specious  name  of  amendment,  that 
same  wisdom  and  caution  have  provided  salutary  checks. 

u  Two  thirds  of  both  houses  of  the  congress  shad  deem  it 
necessary”  to  propose  amendments ;  and  three  fourths 
of  the  state  legislatures  shall  ratify  such  amendments ; 
before  they  acquire  validity.  I  speak  now,  sir,  of  the 
mode  which  has  always  been,  and  probably  will  be  put 
in  practice  to  obtain  amendments.  The  other  constitu¬ 
tional  mode  is  equally  guarded  as  to  numbers,  but,  as  it 
has  no  relation  to  the  subject  now  in  debate,  may  be  laid 
aside.  “  Two-thirds  of  both  houses,”  must,  I  think  on 
every  fair  principle  of  construction,  mean  two-thirds  of 
all  the  members.  The  number  of  senators  is  thirty-four; 
two-thirds  being  twenty -three.  And  as  there  is  no  re¬ 
presentation  from  New  Jersey,  the  number  of  represen¬ 
tatives  is  one  hundred  thirty-six  ;  two-thirds  being  nine¬ 
ty-one.- 

My  impressions  are,  sir,  that  this  amendment  cannot 
constitutionally  be  proposed  to  the  state  legislatures,  un¬ 
less  it  is  agreed  to,  in  the  two  houses,  by  those  numbers, 
twenty-three,  and  ninety-one,  respectively.  This  is  a 
constitutional  point,  which^  I  am  told,  has  never  been 
agitated  but  is  certainly  worthy  of  attention.  If  the 
construction  should  prevail,  that  two-thirds  of  the  mem¬ 
bers  present  at  any  time,  might  propose  amendments, 
the  consequence  is,  that  twelve  senators,  being  two-thirds 
of  a  quorum,  and  forty -eight  representatives,  being  a  simi¬ 
lar  two-thirds,  might  propose  any  and  the  most  impor¬ 
tant  amendments.  I  am  aware,  sir,  that  it  may  be  said, 
such  propositions  are  not  final,  they  may  yet  be  ratified 
or  rejected  by  the  state  legislatures.  But  the  spirit  of 
the  constitution  seems  to  require  two-thirds  of  the  na¬ 
tion,  acting  by  its  proper  organs,  to  propose  amendments  ; 
and  that,  in  so  interesting  a  subject  as  a  constitutional  al¬ 
teration,  a  less  number  should  have  no  authority. 

The  letter  of  the  constitution  will  certainly  justify  this 
idea  of  its  spirit.  When  two-thirds  of  the  senate  are 


(  H8  ) 


requisite  to  consent  and  advise  to  a  treaty,  the  words  are 
«  two-thirds  of  the  senators  present .”  To  convict  on 
impeachment,  “  two-thrds  of  the  members  present  r— 
Yeas  and  nays  are  to  be  entered  on  the  journal,  u  at  the 
desire  of  one-fifth  of  those  present  .”  In  the  two  first 
cases  it  is  requisite  to  act  immediately,  whether  two- 
thirds  of  the  whole  are  present  or  not ;  then  we  see  the 
expressions  are  clear,  “  two-thirds”  refers  to  the  num¬ 
bers  present.  Why  so?  Because,  without  these  expies- 
sions,  the  reference  would  have  been  undei  stood  «.o  ihc 
whole  number  of  members.  In  the  last  case  why  add 
the  word  present ”  to  the  one-fifth  ?  Because,  without 
that  word,  one-fifth  of  the  whole  would  have  been  its 
meaning.  In  all  other  cases,  when  two-thirds  are  re¬ 
quired,  the  spirit  of  the  constitution  certainly  is,  and  the 
words  seem  to  carry  the  meaning,  «  two-thirds”  of  the 
whole  numbers.  It  is  said,  “  that  a  majority  of  each 
house  shall  constitute  a  quorum  to  do  business.” — 
House ,  in  this  case  must  mean  all  the  members.  Two- 
thirds  of  both  houses  must,  on  the  same  principles,  mean 
two-thirds  of  all  the  members  of  both.  There  is,  I  ac- 
knowlege  some  obscurity,  in  the  constitutional  use  of 
the  word  house ,  when  either  of  the  two  branches  of  con¬ 
gress  is  described  by  it;  but  if  the  intention  and  sense  as 
well  as  words  are  attended  to,  I  am  forcibly  led  to  believe 
that  two  thirds  of  all  t!  e  members  of  both  houses,  are 
required  to  sanction  propositions  for  amendments,  and 
that  this  construction  is  most  consistent  with  the  wisdom 
and  political  skill  of  the  convention.  The  construction 
for  which  I  contend  is  analogous  to  the  caution  manifest 
in  other  parts  of  the  constitution.  It  wras  well  known  to 
the  convention,  that  amendments,  if  recommended  or 
proposed  by  congress,  w  ould  have  an  imposing  influence 
with  the  state  legislatures  ;  and  that  in  no  possible  in¬ 
stance,  could  more  evil  arise  from  indigested  measures, 
than  in  the  case  of  amendments,  owing  to  the  imposis- 
bility  of  clearly  foreseeing  their  operation  and  effects  on 
the  general  constitutional  system.  It  wras  made  requi¬ 
site  therefore  to  wrait  for  the  uninfluenced  movement  of 
two  thirds  of  the  popular  and  federative  representatives 
of  the  nation.  Whatever  may  be  our  opinion  on  the 
point  now  discussed,  the  state  legislatures  have  a  con¬ 
stitutional  right  to  judge  of  it  for  themselves,  and  to  de¬ 
termine  whether  a  proposition  for  an  amendment  is  pre¬ 
sented  to  them,  with  the  sanction  required,  and,  if,  in 


(  119  ) 


their  opinions,  the  requisite  numbers  have  not  agreed  to 
the  proposition,  they  will  guard  the  constitution,  by  re¬ 
fusing  to  ratify  such  amendment.  My  honorable  friend 
from  New  Hampshire  (Mr.  Plumer)  has  done  such  am¬ 
ple  justice  to  this  part  of  the  subject,  as  to  place  it  out 
of  the  reach  of  my  assistance  and  beyond  the  need  of 
any. 

I  am  convinced,  Mr.  President,  that  the  amendment 
now  under  consideration  could  not,  in  the  senate,  obtain 
a  constitutional  majority,  of  two-thirds,  or  even  a  simple 
majority,  were  it  not  for  the  influence  of  instructions.— 
Some  gentlemen  have  ingeniously  said,  that  until  they 
gave  this  amendment  the  present  particular  examination, 
they  had  not  contemplated  the  extent  of  its  probable  ef¬ 
fects,  and  although  they  entertained  doubts,  yet  they 
were  induced  by  the  instructions  given  them,  to  make  the 
proposition  to  the  legislatures,  and  let  them  decide  for 
themselves. 

Whatever  may  or  can  be  said  in  favor  of  instructions 
generally,  cannot  be  applicable  to  this  case.  For  the 
purpose  of  obtaining  amendments  to  the  constitution, 
congress  can  only  propose,  and  the  state  legislatures  ra¬ 
tify.  The  duties  are  appropriate  and  distinct,  and  the 
uninfluenced  independent  act  of  both,  requisite.  The 
legislatures  cannot  ratify,  till  a  proposal  is  made.  This 
subject  can  be  elucidated  and  enforced  by  familiar 
examples.  The  house  of  representatives  alone,  can 
originate  a  bill  for  raising  revenue,  but  it  cannot  become 
a  law  without  a  concurrence  of  the  senate  Would  not 
the  advice  and  instruction  of  the  senate  to  the  house, 
intimating  our  desiie  that  they  would  originate  and  send 
to  us  for  concurrence,  a  revenue  bill,  be  thought  improper, 
indelicate  and  even  unconstitutional  ?  the  president  and 
senate  can  appoint  certain  officers,  but  they  have  distinct 
and  appropriate  agencies  in  the  appointment.  The  pre¬ 
sident  can  nominate,  but  cannot  appoint  without  the  ad¬ 
vice  and  consent  of  the  senate. 

But  the  senate  cannot  nominate,  nor  could  their  advice 
to  the  president,  to  make  a  nomination,  be  either  binding 
or  proper.  The  character  of  the  several  independent 
branches  of  our  government,  forming  constitutional  checks 
upon  each  other,  cannot  be  exemplified  more  fully,  than 
in  the  mode  of  producing  amendments.  And  an  inter¬ 
ference  of  one  independent  body,  upon  the  appropriate 
and  distinct  duties  of  another,  can  in  no  instance  have  a 


(  120  ) 


more  prejudicial  effect.  Can  it  be  thought,  then  either 
proper,  or  constitutional  for  the  state  legislatures  to  as¬ 
sume  the  power  of  instructing  to / iro/iose  to  them  a  mea¬ 
sure,  when  the  power  of  proposing  is  not  only  not  given 
to  them,  bu;  given  exclusively  to  congress  ?  As  well  and 
with  as  much  propriety  might  congress  make  a  law,  at¬ 
tempting  to  bind  the  state  legislatures  to  ratify  ;  as  the 
legislatures  by  instructions,  bind  congress  to  propose. — ■ 
In  either  case  the  check,  which  for  obviously  wise  pur¬ 
poses,  was  introduced  into  the  constitution,  is  totally  de¬ 
stroyed.  And  we  have  not  as  much  security  against  im¬ 
proper  amendments,  as  we  should  have,  if  the  power  were 
exclusively  vested  in  the  state  legislatures,  and  for  this 
obvious  reason,  that  in  this  mode  of  operation  the  respon¬ 
sibility,  for  the  adoption  of  an  improper  amendment,  is 
divided  and  destroyed.  Is  the  sentiment  correct,  sir,  that 
we  shall  be  justifiable  in  sending  forth  this  proposition 
be  considered  by  the  state  legislatures,  if  we  believe  it 
ought  not  to  be  ratified  ?  What  would  be  thought  of  the 
senate,'  if  they  should  pass  a  bill,  and  send  it  to  the  house 
of  representatives  for  concurrence,  the  provisions  of 
which  they  disliked  entirely,  and  wished  not  to  be  estab¬ 
lished  ?  And  can  any  sound  distinction  be  made  between 
such  a  measure,  and  the  one  now  before  us  ?  In  either 
case,  the  single  act  of  the  other  body  would  be  final  ;  and 
in  either  case  the  people  at  large  would  be  safer  to  have 
but  one  body  in  existence,  to  legislate,  or  make  amend¬ 
ments  ;  for  ail  our  agency  in  both  cases  would  only  tend 
to  deceive  and  mislead,  and  in  addition,  to  diminish,  if 
not  destroy,  as  has  just  been  observed,  the  responsibility 
of  the  other  body. 

It  has  been  said  sir,  that  the  house  of  representatives 
have  twice  given  a  sanction  to  this  measure,  and  that 
their  conduct,  in  this  particular,  adds  weight  to  it.  I  wish 
to  treat  that  honourable  body  with  the  highest  respect ; 
but  I  must  deviate  from  the  truth,  were  I  to  acknow  ledge 
that  their  conduct  upon  this  amendment,  has  a  tendency 
to  convince  me  that  they  have  a  full  understanding  of 
the  subject.  Twice  have  they  sent  us  a  resolution,  simi¬ 
lar  in  its  leading  feature  to  that  on  your  table,  and  made 
no  provision  that  the  person  to  be  vice  president,  should 
be  qualified  for  the  highly  responsible  office,  either  in 
age,  or  citizenship.  And  for  aught  that  they  had  guard¬ 
ed  against,  we  might  have  had  a  man  in  the  chief  magis¬ 
tracy,  from  Morocco,  a  foreigner  who  had  not  been  in  the 
country  a  month. 


(  151  ) 


}.ir.  President,' — -it  was  suggested,  in  a  former  part  of 
the  debate,  by  a  gentleman  from  South  Carolina,  (Mr. 
Butler,)  that  the  great  states,  or  ruling  party  of  the  day, 
had  brought  forward  tnis  amendment,  for  the  purpose  of 
preventing  the  choice  of  a  federal  vice  president  at  the 
next  ck  ction.  .rviid  we  are  now  put  oeyond  tne  power 
of  doubt,  that  this  is,  at  least,  one  motive,  by  the  observa¬ 
tions  oi  several  of  the  majority,  but  especially  by  those 
of  the  gentleman  from  v  irginia.  He  inf  orms  us,  and  I 
appreciate  his  frankness,  that  if  the  friends  of  this  mea¬ 
sure  do  not  seize  the  present  opportunity  to  pass  it,  the 
opportunity  will  never  recur.  Pie  tells  us  plainly,  that  a 
minor  faction  ought  to  be  discouraged,  that  all  hopes  or 
PiOspect  ox  rising  into  consequence,  much  more  of  ri¬ 
sing  into  office,  should  be  crushed,  and  that  this  amend¬ 
ment  is  to  produce  a  part  of  these  beneficial  effects  ; 
which  amendment  he  compares  to  the  bill  which  was 
inti  oauced  into  the  British  parliament,  to  exclude  a  po¬ 
pish  successor  to  the  crown,  commonly  called  the  ex¬ 
clusion^  bill.  Have  the  minority  then,  no  right  left,  but 
the  right  to  be  tram  filed  upon  by  the  majority  ?  This 
is  identically  the  conduct,  which  is  mentioned  in  the 
quotation  which  I  have  had  the  honor  to  make  from 
the  secretary  of  state  ;  to  which  I  ask  leave  to  recur 

i  »ie  majoiity,  by  trawnfilvng  on  the  rig’hts  of  the  fnino-' 
nty,  have  produced  factions  and  commotions,  which  in 
republics,  have  more  frequently  than  any  other  cause 
produced  des/iotism.” 

Y\  hat  a\  ails  it  then,  that  this  country  has  triumphed 
over  the  invasion  and  violence  ofone  oppressor,  if  they 
must  now  be  victims  to  the  violence  of  thousands  ?  Po¬ 
litical  death  is  denounced  now  ;  what  denunciation  will 
follow  ?  It  would  be  a  useless  affectation  in  us,  to  pre¬ 
tend  to  close  our  eyes  upon  cither  the  cause  or  conse¬ 
quences  of  this  measure. 

rile  spirit  of  party  has  risen  so  high,  at  the  present 
day,  that  it  dares  to  attempt,  what" in  milder  times 
would  be  beyond  the  reach  of  calculation.  To  this  over¬ 
whelming  torrent  every  consideration  must  give  way. 

The  gentleman  is  perfectly  correct,  in  supposing  that 
now  is  the  only  time  to  pass  this  resolution  ;  there  is  a 
tide  in  the  affairs  of  party  most  emphatically,  and  un¬ 
less  its  height  is  taken,  its  acme  improved,  the  shallows 
soon  appear,  and  the  present  demon  of  party  give  place 
fo  a  successor.  A  hope  is  undoubtedly  now  indulged 


(  122  ) 


that  one  great  and  dominant  passion,  will,  like  Aaron’s 
rod,  swallow  up  every  other,  and  that  the  favorable  mo¬ 
ment  can  now  be  seized  to  crush  the  small  states,  and 
to  obtain  their  own  agency  in  the  transaction.  And 
when  we  recur  to  the  history  of  former  confederacies, 
and  find  the  small  states  arrayed  in  conflict  against 
each  other,  to  fight,  to  suffer,  and  to  die  for  the  transi¬ 
ent  gratification  of  the  great  states  ;  have  we  not  some 
reason  to  fear  the  success  of  this  measure  ? 

In  the  senate  is  the  security  of  the  small  states ; 
their  feeble  voice  in  the  house  of  representatives  is  lost 
in  the  potent  magic  of  numbers  and  wealth.  Never 
until  now  the  force  of  the  small  states,  which  was  pro¬ 
vided  by  the  constitution,  and  lodged  in  this  federative 
body,  as  a  weapon  of  self-defence,  been  able  to  bear  up¬ 
on  this  question.  And  will  the  small  states,  instead 
of  defending  their  own  interest,  their  existence,  sacri¬ 
fice  them  to  a  gust  of  momentary  passion  ?  to  the  short 
lived  gratification  of  party  prejudice  ? 

This  resolution,  if  circumstances  shall  unequivocally 
demand  it,  can  pass  at  the  next  or  any  future  session 
of  congress.  But  once  passed,  and  its  passage  will  ope¬ 
rate  like  the  grave  ;  the  sacrificed  rights  of  the  small 
states  will  be  gone  for  ever.  Is  it  possible,  sir,  that 
any  small  state  can  submit  to  be  a  satellite  in  the  state 
system,  and  revolve  in  tt  secondary  orbit  around  a  great 
state  ?  Act  in  humble  devotion  to  her  will  till  her  pm  - 
poses  are  gratified,  and  then  content  herself  to  be  thrown 
aside  like  a  cast  garment,  an  object  of  her  own  unceas¬ 
ing  regret,  and  fit  only  for  the  hand  of  scorn  to  point 
its  slow  and  moving  finger  at  ?  Can  the  members  of  the 
senate  who  represent  the  small  states,  quietly  cross 
their  hands  and  request  the  great  states  to  bind  them 
fast  and  to  draw  the  ligature? 

I  am  aware,  sir,  that  I  shall  be  accused  of  an  attempt 
to  excite  the  jealousy  of  the  small  states.  Mr.  Presi¬ 
dent,  I  represent  a  small  state,  I  feel  the  danger,  and 
claim  the  constitutional  right  to  sound  the  alarm,  from 
the  same  altar  on  which  the  small  states  shall  be  im¬ 
molated,  will  rise  the  smoke  of  sacrificed  liberty  :  and 
despotism  must  be  the  dreadful  successor. 

It  is  the  cause  of  my  country  and  of  humanity  which 
1  plead.  And  when  one  vast,  overwhelming  passion  is 
in  exercise,  full  well  I  know,  sir,  that  no  warning  voice, 
no  excitement  but  jealousy,  has  been  found  sufficiently 


(  123  ) 


active  and  energetic  in  its  operation  to  dissolve  the 
wizard  spell,  and  force  mankind  to  listen  to  argument. 
Jealousy,  hateful  in  private  life,  has  perhaps  done  more 
in  the  preservation  of  political  rights  than  all  the  virtues 
united. 

I  have  made  the  stand,  sir,  in  the  senate,  which  I 
thought  the  importance  of  the  subject  demanded.  If 
I  fail  here,  there  is  hope  of  success  with  the  state  legis¬ 
latures.  If  nothing  can  withstand  the  torrent  there,  I 
shall  experience  the  satisfaction  which  is  derived  from 
a  consciousness  of  having  raised  my  feeble  voice  in  de¬ 
fence  of  that  constitution,  which  is  not  only  the  security 
of  the  small  states,  but  the  palladium  of  my  country’s 
rights  ;  and  shall  console  myself  with  the  reflection  that 

I  have  done  mv  dutv. 

0  0 

Mr.  Taylor — The  opposition  to  this  discriminating 
amendment  to  the  constitution,  is  condensed  into  a  single 
stratagem,  namely,  an  effort  to  excite  the  passion  of 
jealousy  in  various  forms.  Endeavours  have  been 
made  to  excite  geographical  jealousies;  a  jealousy  of  the 
smaller  against  the  larger  states  ;  a  jealousy  in  the  people 
against  the  idea  of  amending  the  constitution  ;  and  even 
a  jealousy  against  individual  members  of  this  house.  Sir, 
is  this  passion  a  gGod  medium  through  which  to  discern 
truth,  or  is  it  a  mirror  calculated  to  reflect  error?  Will 
it  enlighten  or  deceive  ?  Is  it  planted  in  good  or  in  evil — . 
in  moral  or  in  vicious  principles  ?  Wherefore  then  do 
gentlemen  endeavour  to  blow  it  up  ?  Is  it  because  they 
distrust  the  strength  of  their  arguments,  that  they  resort 
to  this  furious  and  erring  passion  ?  Is  it  because  they 
know  that 

“  ........Trifles  light  air,  are  to  the  jealous 

Confirmations  strong  as  proof  of  holy  v/fit-’* 

So  far  as  these  efforts  have  been  directed,  towards  a 
geographical  demarcation  of  the  interests  of  this  union 
into  north  and  south,  in  order  to  excite  a  jealousy  of  one 
division  against  another  ;  and  so  far  as  they  have  been 
used  to  create  suspicions  of  individuals,  they  have  been 
either  so  feeble,  inapplicable,  or  frivolous,  as  to  bear  but 
lightly  upon  the  question  ;  and  to  merit  but  little  atten¬ 
tion.  But  the  attempts  to  array  states  against  states, 
because  they  differ  in  size,  and  to  prejudice  the  people 
againt  the  idea  of  amendiug  their  constitution,  bear  a 
more  formidable  aspect  ;  and  ought  to  be  repelled  ; 
because  they  are  founded  on  principles  the  most  mischiev- 


(  124  ) 


cus  and  inimical  to  the  constitution,  and  could  they  be 
successful  ;  are  replete  with  great  mischiefs. 

Towards  exciting  this  jealousy  of  smaller  states  against 
larger  states,  the  gentleman  frcm  Connecticut  (Mr. 
Tracy)  has  laboured  to  prove,  that  the  federal  principle 
ot  the  constitution  of  the  United  States  was  founded  in 
the  idea  of  minority  invested  with  operative  power. — 
That  in  pursuance  of  this  principle,  it  was  contemplated 
and  intended,  that  the  election  of  a  president  should 
frequently  come  into  the  house  of  representatives  ;  and 
to  divert  it  from  thence  by  this  amendment,  would  trench 
upon  the  federal  principle  of  our  constitution,  and  di¬ 
minish  the  rights  of  the  smaller  states,  bestowed  by  this 
principle  upon  them.  This  was  the  scope  of  his  argu¬ 
ment,  to  excite  their  jealousy,  and  is  the  amount  also  of 
several  other  arguments  delivered  by  gentlemen  on  the 
same  side  of  the  question.  He  did  not  question  the 
words  but  the  ideas  of  gentlemen.  W ords,  selected 
from  their  comrades,  are  easily  asserted  to  misrepresent 
opinions  ;  as  he  had  himself  experienced  during  the 
discussion  on  the  subject. 

This  idea  of  federalism  ought  to  be  well  discussed  by 
the  smaller  states,  before  they  will  suffer  it  to  produce 
its  intended  effect ;  that  of  exciting  their  jealousy  against 
the  larger.  To  him  it  appeared  to  be  evidently  incor¬ 
rect.  Two  principles  sustain  our  constitution  ;  one,  a 
majority  of  the  people  ;  the  other,  a  majority  of  the 
states  ;  the  first  was  necessary  to  preserve  the  liberty, 
or  sovereignty  of  the  people  ;  the  last,  to  preserve  the 
liberty  or  sovereignty  of  the  states.  But  both  are  foun¬ 
ded  in  the  principle  of  majority  ;  and  the  effort  of  the 
constitution,  is  to  preserve  this  principle  in  relation  both 
to  the  people  and  the  states,  so  that  neither  species  of 
sovereignty  or  independence,  should  be  able  to  destroy  the 
other.  Many  illustrations  might  be  adduced.  That 
of  amending  the  constitution  will  sufiice.  Three 
fourths  of  the  states  must  concur  in  this  object,  be¬ 
cause  a  less  number  or  a  majority  of  states,  might  net 
contain  a  majority  of  fiecftlc  ;  therefore  the  constitution 
is  net  amendable  by  a  majority  of  states,  lest  a  species  of 
state  sovereignty,  might  under  colour  of  amending  the 
constitution,  infringe  the  right  of  the  people  ;  on  the  other 
hand,  a  majority  ot  the  people  ;  residing  in  the  large  states 
cannot  amend  the  constitution,  lest  they  should  diminish 
or  destroy  the  sovereignty  of  the  small  states,  the  fede- 


(  125  ) 


ral  union  or  federalism  itself.  Hence  a  concurrence  of 
the  states,  to  amend  the  constitution  became  necessary ; 
not  because  federalism  was  founded  in  the  idea  of  mi¬ 
nority  ;  but  for  a  reason  the  very  reverse  of  that  idea ; 
that  is,  to  cover  the  will ,  both  of  a  majority  of  the  people 
and  a  majority  of  states  so  as  to  preserve  the  great  element 
ot  seif  government,  as  it  regarded  state  sovereignty,  and 
aiso  as  it  regarded  the  sovereignty  of  the  people. 

'  For  this  great  purpose,  certain  political  functions  are 
assigned  to  be  performed,  under  the  auspices  of  the  state 
or  federal  principle  ;  and  certain  others,  under  the  popu¬ 
lar  principle.  It  was  the  intention  of  the  constitution, 
that  these  functions  should  be  performed  in  conformity 
to  its  principle.  If  that  principle  is  in  fact  a  government 
of  a  minority,  then  these  factions  ought  to  be  performed 
by  a  minority.  When  the  federal  principle  is  perform¬ 
ing  a  function,  according  to  this  idea,  a  minority  of  the 
states  ought  to  decide.  And  by  the  same  mode  of 
reasoning,  when  the  popular  principle  is  performing  a 
function  then  a  minority  of  the  people  ought  to  decide. 
This'brings  us  precisely  to  the  question  of  the  amend¬ 
ment.  It  is  the  intention  of  the  constitution,  that  the 
popular  principle,  shall  operate  in  the  election  of  a  pre¬ 
sident  and  vice  president.  It  is  also  the  intention  of  the 
constitution,  that  the  popular  principle,  in  discharging 
the  functions  committed  to  it  by  the  constitution,  should 
operate  by  a  majority,  and  not  by  a  minority.  That  the 
majority  of  the  people  should  be  driven  by  an  unforeseen 
state  of  parties,  to  the  necessity  of  relinquishing  their 
will,  in  the  election  of  one  or  the  other  of  these  officers  ; 
or  that  the  principle  of  majority,  in  a  function  confided 
to  the  popular  will,  should  be  deprived  of  half  its  rights, 
and  belaid  under  a  necessity  of  violating  its  duty  to  pre¬ 
serve  the  other  half,  is  not  the  intention  of  the  consti¬ 
tution. 

But  the  gentleman  from  Connecticut  has  leaped  over 
all  this  ground,  and  gotten  into  the  house  of  representa¬ 
tives,  without  considering  the  principles  of  the  constitu¬ 
tion,  as  applicable  to  the  election  of  president  and  vice 
president  by  electors,  and  distinguishing  them  from  an 
election  by  the  house  of  representatives.  And  by  ming¬ 
ling  and  interweaving  the;two  modes  of  electing  together, 
a  considerable  degree  of  complexity  has  been  produced. 
Ifhowever,  it  is  admitted,  that  in  an  election  of  a  president 
and  vice  president,  by  electors,  that  the  will  of  the  electing 


(  126  ) 


majority  ought  fairly  to  operate,  and  that  an  election  by 
the  will  of  a  minority  would  be  an  abuse  or  corruption  of 
the  principles  of  the  constitution,  then  it  follows,  that  an 
amendment  to  avoid  this  abuse,  both  accords  with,  and  is 
necessary  to  save  these  principles.  In  like  manner,  had 
an  abuse  crept  into  the  same  election,  whenever  it  was  to 
be  made  under  the  federal  principle  by  the  house  of  repre¬ 
sentatives,  enabling  a  minority  of  states  to  carry  the 
election,  it  would  not  have  violated  the  intention  of  the 
constitution  to  have  corrected  this  abuse  also,  by  an 
amendment.  For,  Sir,  I  must  suppose  it  to  have  been 
the  intention  of  the  constitution,  that  both  the  federal  prin¬ 
ciple,  and  the  popular  principle,  should  operate  in  those 
functions  respectively  assigned  to  them,  perfectly  and  not 
imperfectly ;  that  is;  the  former  by  a  majority  ol  states, 
and  the  latter  by  a  majority  of  the  people. 

Under  this  view  of  the  subject,  the  amendment  ought 
to  be  considered.  Then  the  question  will  be,  whether 
it  is  calculated  or  not,  to  cause  the  popular  principle, 
applied  by  the  constitution  in  the  first  instance,  to  ope¬ 
rate  perfectly ,  and  to  prevent  the  abuse,  of  an  election  by 
a  minority  ?  If  it  is,  it  corresponds  with  the  intention, 
diminishes  nothing  of  the  rights  of  the  smaller  states, 
and  of  course  affords  them  no  cause  of  jealousy.  Sir, 
it  could  never  have  been  the  intention  of  the  constitution 
to  produce  a  state  of  things,  by  which  a  majority  of  the 
popular  principle,  should  be  under  the  necessity  of  vot¬ 
ing  against  its  judgment,  to  secure  a  president ;  and  by 
which  a  minor  faction  should  acquire  a  power  capable  of 
defeating  the  majority  in  the  election  of  a  president,  or 
cf  electing  a  vice  president  contrary  to  the  will  ol  a  ma¬ 
jority  of  the  electing  principle.  To  permit  this  abuse, 
would  be  a  fraudulent  mode  of  defeating  the  operation  of 
the  popular  principle  in  this  ejection,  in  order  to  transfer 
it  to  the  federal  principle ;  to  disinherit  the  people,  for 
the  sake  of  endowing  the  house  ol  representatives ; 
whereas  it  was  an  accidental,  and  not  an  artificial  disap¬ 
pointment  in  the  election  of  a  president,  against  which 
the  constitution  intended  to  provide.  A  fair  and  not  an 
unfair  attempt  to  elect,  was  previously  to  be  made  by  the 
popular  principle,  before  the  election  was  to  go  into  the 
house  of  representatives.  And  if  the  people  ol  all  the 
states  both  h  rge  and  small,  should  by  an  abuse  ol  the 
real  design  of  the  constitution,  be  bubbled  out  of  the 
election  of  executive  power,  by  leaving  to  them  the  no- 


(  127  ) 


minal  right  of  an  abortive  effort ,  and  transferring  to  the 
house  of  representatives  the  substantial  right  of  a  real 
election ,  nothing  will  remain  but  to  corrupt  the  election 
in  that  house,  by  some  of  those  abuses  of  which  elections 
by  diets  are  susceptible,  to  bestow  upon  executive  power 
an  aspect,  both  formidable  and  inconsistent  with  the 
principles  by  which  the  constitution  intended  to  mould 
it.  The  great  check  imposed  upon  executive  power,  was 
a  popular  mode  of  election  ;  and  the  true  object  of  jea¬ 
lousy,  which  ought  to  attract  the  attention  of  the  people 
of  every  state,  is  any  circumstance,  tending  to  diminish 
or  destroy  that  check.  It  was  also  a  primary  intention 
of  the  constitution,  to  keep  executive  power,  indepen¬ 
dent  of  legislative ;  and  although  a  provision  was  made 
for  its  election  by  the  house  of  representatives  in  a  pos¬ 
sible  case,  that  possible  case  never  was  intended  to  be 
converted  into  the  active  rule,  so  as  to  destroy  in  a  degree 
the  line  of  separation  and  independency  between  execu¬ 
tive  and  legislative  power.  The  controversy  is  not 
therefore  between  iarger  and  smaller  states,  but  between 
the  people  of  every  state,  and  the  house  of  representa¬ 
tives.  Is  it  better  that  the  people — -a  fair  majority  of  the 
popular  principle — .should  elect  executive  power  ;  or 
that  a  minor  faction  should  be  enabled  to  embarrass  and 
defeat  the  judgment  and  will  of  this  majority,  and  throw 
the  election  into  the  house  of  representatives.  This  is 
the  question.  If  this  amendment  should  enable  the  po¬ 
pular  principle  to  elect  executive  power,  and  thus  keep 
it  separate  and  distinct  from  legislation,  the  intention  of 
the  constitution,  the  interest  ol  the  people,  and  the  prin¬ 
ciples  of  our  policy  will  be  preserved  ;  and  if  so,  it  is  as 
I  have  often  endeavored  to  prove  in  this  debate,  the  in¬ 
terest  of  the  smaller  states  themselves,  that  the  amend¬ 
ment  should  prevail,  f  or,  sir,  is  an  exposure  of  their 
representatives  to  bribery  and  corruption  (a  thing  which 
may  possibly  happen  at  some  future  day,  when  men 
iose  that  public  virtue  which  now  governs  them)  an  ac¬ 
quisition  more  desirable  than  ail  those  great  objects,  best, 
(if  not.  exclusively)  attainable,  by  the  election  of  execu¬ 
tive  power  by  the  popular  principle  of  the  federal  govern¬ 
ment,  as  the  constitution  itseif  meditates  and  prefers. 

So  far  then  the  amendment  strictly  coincides  with  the 
constitution,  and  with  the  interests  of  the  people  of  every 
state  in  the  union.  But  suppose  by  some  rare  accident 
the  election  should  still  be  sent  into  the  house  of  repre- 


(  128  ) 


sentatives  ;  docs  not  the  amendment  then  afford  cause 
of  jealousy  to  the  smaller  states  ?  Sir,  each  state  has 
but  one  vote,  whether  it  is  iarge  or  small  ;  and  the 
president  and  vice  president  are  still  to  be  chosen  out  of 
five  persons.  Such  is  the  constitution  in  both  respects 
now.  To  have  enlarged  the  number  of  nominees,  would 
have  encreased  the  occurrence  of  an  election  by  the 
house  of  representatives  ;  and  if  as  I  have  endeavoured 
to  prove,  it  is  for  the  interest  of  every  state,  that  the 
election  should  be  made  by  the  popular  principle  of  go¬ 
vernment  and  not  by  that  house  ;  then  it  follows,  that  what 
ever  would  have  a  tendency  to  draw  the  election  into  that 
house,  is  against  the  interest  of  every  state  in  the  union  ; 
and  that  every  state  in  the  union  is  interested  to  avoid 
an  enlargement  of  the  nominees,  if  it  would  have  such 
a  tendency. 

Sir,  the  endeavor  to  excite  a  national  jealousy  against 
the  idea  of  amending  the  constitution,  is  in  my  view,  in¬ 
finitely  more  dangerous  and  alarming,  than  even  the  at¬ 
tempt  to  marshal  states  against  states.  The  gentleman 
from  Connecticut,  (Mr.  Tracy)  has  twice  pronounced 
with  great  emphasis,  “  man  is  man”  and  attempted  to 
make  inferences  against  all  attempts  to  amend  cur  con¬ 
stitution,  from  the  evil  moral  qualities  with  which  human 
nature  is  afflicted  1  Sir,  he  has  forgotten,  \\\&t govern¬ 
ments  as  well  as  nations  are  constituted  of  men  and  that 
if  the  vices  of  governed  man,  ought  to  alarm  us  for  the 
safety  of  liberty,  the  vices  of  governing  man ,  are  not 
calculated  to  assuage  our  apprehensions.  Sir,  it  is  this 
latter  species  of  depravity  which  has  suggested  to  the 
people  of  America,  a  new  idea,  enforced  by  constitu¬ 
tions.  Permit  me,  to  illustrate  this  new  idea,  by  the 
terms  political  law  and  municipal  law.  The  former  is  that 
law,  called  constitutional,  contrived  and  enacted  in  the 
United  States,  to  controul  those  evil  moral  qualities ,  to 
which  this  creature  “  man”  is  liable,  when  invested  with 
power  I  The  latter  is  that  law  enacted  to  controul  the 
vices  of  man  in  his  private  capacity.  If  the  former  spe¬ 
cies  of  law,  should  be  suffered  to  remain  unchanged,  the 
effects  would  be  the  same,,  as  if  the  latter  should  remain 
unchanged.  Both,  unaltered,  would  be  evaded  by  the 
ingenuity,  avarice  and  ambition  of  public  man ,  as  well  as 
private  man.  And  therefore  it  is  as  necessary  for  the 
preservation  of  liberty,  that  constitutions  or  political 
law,  should  be  amended  from  time  to  time,  in  order  to 


(  129  ) 


preserve  liberty  against  the  avarice  and  ambition  of  men 
in  power,  by  meeting  and  controuling  their  artifices ;  as 
it  is,  occasionally  to  amend  municipal  law,  for  the  pre¬ 
servation  of  property  against  the  vicious  practices  cf 
men  not  in  power. 

To  illustrate  this  argument,  I  will  repeat  a  position 
which  I  lately  advanced,  namely,  that  the  substance  of  a 
constitution  may  be  effectually  destroyed,  and  yet  its 

form  may  remain  unaltered.  England  illustrates  it _ 

The  government  of  that  country  took  its  present  form  in 
the  thirteenth  century ;  but  its  aspect  in  substance  has 
been  extremely  different  at  different  periods,  under  the 
same  form.  Without  taking  time  to  mark  the  changes 
in  substance,  which  have  taken  place  under  the  form  of 
kings,  lords,  and  commons,  it  will  suffice  to  cast  our  eyes 
upon  the  present  state  of  that  government.  What  are 
now  its  chief  and  substantial  energies  ?  Armies ,  debt ,  ex¬ 
ecutive  patronage ,  penal  laws,  and  corporations.  These 
are  the  modern  energies  or  substance  of  the  English 
monarchy  ;  to  the  ancient  English  monarchy  they  were 
unknown.  Of  the  ancient,  they  were  substantial  abuses  ; 
for,  whether  these  modern  energies  are  good  or  bad, 
they  overturned  the  ancient  monarchy  substantially, 
without  altering  its  form.  Under  every  change  of  ad¬ 
ministration,  these  abuses  proceeded.  The  outs  were 
clamorous  for  preserving  the  constitution,  as  they  called 
it  ;  for  though  divorced  from  its  administration,  the 
hope  of  getting  in,  again  caused  them  to  maintain  abuses, 
by  which  their  avarice  or  ambition  might  be  gratified 
upon  the  next  turn  of  the  wheel ;  just  as  in  Prussia, 
where  divorces  are  common,  nothing  is  more  usual  than 
for  late  husbands  to  affect  a  violent  passion  for  a  former 
wife,  if  she  carried  off  from  him  a  good  estate  !  And  the 
ins  fearing  the  national  jealousy,  and  the  prepossession 
against  amending  the  form  of  government,  and  meeting 
new  abuses  by  new  remedies,  brought  no  relief  to  the  na¬ 
tion.  So  that  under  every  change  of  men,  abuses  pro¬ 
ceeded. 

The  solution  of  this  effect  exists  in  the  species  of  poli¬ 
tical  craft  similar  to  priest  craft.  Mankind  were  ancient¬ 
ly  deprived  of  their  religious  liberty,  by  a  dissemination 
of  a  fanatical  zeal  for  some  idol  ;  in  times  of  ignorance, 
this  idol  was  of  physical  structure  ;  and  when  that  fraud 
was  detected,  a  metaphysical  idol  in  the  shape  of  a  tenet 
or  dogma  was  substituted  for  it,  infinitely  more  perni- 

R 


(  130  ) 


cious  in  its  effects,  because  infinitely  more  difficult  of 
detection.  The  same  system  has  been  pursued  by  poli¬ 
tical  craft.  It  has  ever  labored  to  excite  the  same  spe¬ 
cies  of  idolatory  and  superstition,  for  the  same  reason, 
namely,  to  conceal  its  own  frauds  and  \ices.  Sometimes 
it  sets  up  a  physical,  at  others,  a  metaphysical  idol,  as  the 
object  of  vulgar  superstition.  Of  one,  the  former 
“grand  monarch  of  France” ;  of  the  other,  the  present 
“church  and  state”  tenet  of  England,  is  an  evidence.— 
And  if  our  constitution  is  to  be  made  like  the  “  church 
and  state  tenet  of  England  ;  a  metaphysical  political  idol, 
which  it  will  be  sacrilege  to  amend ,  even  for  the  sake  of 
saving  both  that  and  the  national  liberty  ; — and  if,  like 
that  tenet,  it  is  to  be  exposed  to  all  the  means  which  cen¬ 
turies  may  suggest  to  vicious  men  for  its  substantial  de¬ 
struction  ;  it  is  not  hard  to  imagine  that  it  also  may  be¬ 
come  a  monument,  of  the  inefficacy  of  unalterable  forms 
of  political  law,  to  correct  avarice  and  ambition  in  the 
new  and  multifarious  shapes  they  are  forever  assuming. 

A  constitution  may  allegorically  be  considered  as  a 
temple  for  the  preservation  of  the  treasure  of  liberty. 
Around  it  may  be  posted  one,  two  or  three,  or  more  cen- 
tinels  ;  but  unless  these  centinels  are  themselves  watched 
by  the  people,  and  unless  the  injuries  they  are  frequent¬ 
ly  committing  upon  the  temple  are  diligently  repaid,  such 
is  the  nature  of  man  in  power,  that  the  very  centinels 
themselves  have  invariably  broken  into  the  temple,  and 
conveyed  away  the  treasure.  And  this  because  of  tne  de¬ 
lusion  inspired  by  political  idolatry,  which  forbids  nations 
to  meet  abuses  by  amending  their  governments  or  consti¬ 
tutions  ;  and  teaches  them  that  municipal  law  alone  will 
suffice  for  their  happiness. 

Permit  me,  sir,  to  illustrate  this  argument  by  declaring 
how  I  would  proceed,  if  such  was  my  design,  to  destroy 
the  constitution  of  the  United  States ;  premising  that  I 
speak  prospectively  and  not  retrospectively.  I  would 
have  recourse  to  those  very  energies  w  hich  constitute  the 
English  monarchy ;  armies,  debt,  executive  patronage, 
penal  laws  and  corporations.  I  would  endeavor  by  these 
monarchical  energies,  to  produce  the  same  effects  as  in 
England ;  and  I  would  hide  my  intentions  by  exciting  a 
fanatical  adoration  for  the  constitution,  which  I  would 
endeavor  to  make  a  metaphysical  idol ;  and  which  I 
would  myself  adore — *in  order  to  destroy.  Whilst  I  pre¬ 
tended  to  be  its  devotee  it  should  become  my  screen. 


(  131  ) 


This  sir  will  be  the  consequence,  if  the  people  of  the 
United  States,  should  become  jealous  of  the  amending  the 
constitution  ;  and  therefore  this  species  of  jealousy  so  indus¬ 
triously  attempted  to  be  excited,  is  calculated  if  it  could 
operate,  to  bring  upon  them  the  utmost  calamity.  Abuses 
of  a  political  system  will  happen  ;  and  amendments  only 
can  meet  abuses.  Public  opinion,  and  not  an  idolatrous 
tenet,  is  the  element  of  our  policy  ;  and  however  the 
gentleman  from  Massachusetts  (Mr.  Pickering)  may 
deride  the  opinion  of  the  people,  it  is  the  element  in  which 
our  policy  is  rooted,  and  which  can  at  all  times  be  safely 
entrusted  with  moulding  their  form  of  government. 

Mr.  Pickering  here  explained. 

Sir,  I  quote  gentlemen’s  ideas  and  not  their  words ; 
is  it  not  true  that  the  gentleman  ridiculed  a  recommen¬ 
dation  of  this  very  amendment,  even  from  a  state  legis¬ 
lature,  because  of  some  grammatical  inaccuracy ;  and 
that  be  reasoned  against  the  possibility  of  knowing  what 
the  public  opinion  was ;  and  yet,  however  inaccurately  it 
may  be. expressed,  that  gentleman  certainly  has  had  suf¬ 
ficient  evidence  to  convince  him ,  that  public  opinion  is 
really  a  noun  substantive. 

It  has  been  urged,  sir,  by  the  gentlemen  in  opposition, 
in  a  mode,  as  if  they  supposed  we  wished  to  conceal  or 
deny  it,  that  one  object  of  this  amendment,  is  to  bestow 
upon  the  majority  a  power  to  elect  a  vice  president. 
Sir,  I  avow  it  to  be  so.  This  is  one  object  of  the  amend¬ 
ment  ;  and  the  other  (as  to  which  I  have  heretofore  ex¬ 
pressed  my  sentiments)  is  to  enable  the  electors,  by 
perfecting  the  election  of  a  president,  to  keep  it  out  of 
the  house  of  representatives.  Are  not  both  objects  cor¬ 
rect— if,  as  I  have  endeavoured  to  prove,  the  constitu¬ 
tion  in  all  cases  wherein  it  reiers  elections  to  the  popular 
principle,  intended  that  principle  to  act  by  majorities  ? 
Did  the  constitution  intend  that  any  minor  faction,  should 
elect  a  vice  president  ?  if  not,  then  an  amendment  to 
prevent  it,  accords  with,  and  is  preservative  of  the  con¬ 
stitution,  permit  me  here  again  to  illustrate  by  an  his¬ 
torical  case.  England  in  the  time  of  Charles  the  Se¬ 
cond,  was  divided  into  two  parties ;  Protestants  and  pa - 
/lists  ;  and  the  heir  to  the  throne  was  a  pu/nst.  The 
protestants,  constituting  the  majority  of  the  nation,  pass¬ 
ed  an  exclusion  bill ;  but  it  was  defeated,  and  the  minor 
papist  faction,  in  the  person  of  the  duke  of  York,  got 
possession  of  executive  power.  The  consequences  were, 


V 


(  132  ) 


domestic  oppressions  and  rebellions,  foreign  wars  occa¬ 
sionally,  for  almost  a  century,  and  the  foundation  of  a 
national  debt,  under  which  the  nation  has  been  ever  since 
groaning,  and  under  which  the  government  will  finally 
expire. 

Had  the  majority  carried  and  executed  the  proposed 
exclusion  of  James  II.  from  executive  power  the  English 
would  have  escaped  all  these  calamities.  Such  pre¬ 
cisely  may  be  our  case.  I  beg  again  that  it  may  be  un¬ 
derstood,  that  in  this  application,  I  speak  prospectively, 
and  not  retrospectively. 

But  it  is  far  from  being  improbable,  that  in  place  of 
these  religious  parties,  political  parties  may  arise  of  equal 
zeal  and  animosity.  We  may  at  some  future  day,  see 
our  country  divided  into  a  republican  party  and  a  mo¬ 
narchical  party.  Is  it  wise  or  according  to  the  intention 
of  the  constitution,  that  a  minor  monarchical  faction, 
should,  by  any  means,  acquire  the  power  of  electing  a 
vice  president ;  the  possible  successor  to  executive  pow¬ 
er  ?  Ought  a  republican  majority  to  stake  the  national 
liberty  upon  the  frail  life  of  one  man  ?  W  ill  not  a  mo¬ 
narchical  executive,  overturn  the  system  of  a  republican 
executive  1  And  ought  the  United  States  to  shut  their 
eyes  upon  this  possible  danger,  until  the  case  shall  hap¬ 
pen,  when  it  may  be  too  late  to  open  them  ? 

Sir,  let  us  contemplate  the  dreadful  evils  which  the 
English  nation  have  suffered,  from  the  cause  of  investing 
executive  power  in  a  man,  hostile  to  the  national  opinion  ; 
and  avoid  them.  They  suffered,  because  their  exclusion 
bill  was  abortive.  Election  is  our  exclusion  bill.  Its 
efficacy  depends  upon  its  being  exercised  by  a  majority. 
It  is  only  a  minority,  which  can  render  election  insuffi¬ 
cient  to  exclude  monarchical  principles  from  executive 
power.  It  is  aeainst  minority  that  election  is  intended 
to  operate,  because  minority  is  the  author  of  monarchy  and 
aristocracy. 

Shall  we  sir,  be  so  injudicious,  as  to  make  election 
destroy  the  principle  of  election  by  adhering  to  a  mode  of 
exercising  it,  now  seen  to  be  capable  of  bestowing  upon 
a  minority  the  choice  of  a  vice  president  ?  Shall  we 
make  election,  invented  to  exclude  monarchy,  a  hand¬ 
maid  for  its  introduction  ?  Or  shall  we  if  we  do  not 
see  monarchy  at  this  day  assailing  our  republican 
system,  conclude  that  it  never  will  ;  altho’  we  know  that 
this  system  has  but  two  foes,  of  whom  monarchy  is  one  ? 


(  133  ) 


No,  sir,  let  us  rather  draAv  instruction  from  the  pro¬ 
phetic  observations  of  a  member  of  the  English  house 
of  commons,  whilst  the  bill  for  excluding  James  II.  was 

depending  ;  who  said  : 

“  I  hear  a  lion  in  the  lobby  roar 

Say,  Mr.  Speaker,  shall  we  shut  the  door, 

And  keep  him  there  i  Or  shall  we  let  him  in, 

To  try  if  we  can  get  him  out  again” 

Instead  of  shutting  the  door,  the  English  left  it  open  ; 
tyranny  got  in  ;  and  the  evils  produced  by  its  expulsion, 
to  that  nation,  may  possibly  have  been  equal  to  those 
which  submission  Avould  have  produced. 

Sir,  much  has  been  said  about  the  rights  of  minorities, 
and  the  tendency  of  this  amendment  to  keep  up  party 
spirit.  I  wish  I  could  hear  these  rights  of  minorities  defined. 
It  is  easy  to  comprehend  the  justice  of  the  position, u  that 
every  individual  in  society,  has  equal  rights ,  whether  he  be - 
longs  to  a  majority  or  a  minority  but  the  idea  of  a  minor 
faction,  having  political  rights,  as  a  faction,  to  me  is  in¬ 
comprehensible.  On  the  contrary,  I  consider  all  minor 
factions,  as  inflamed,  excited  and  invigorated  by  a  pros¬ 
pect  of  success  ;  just  as  the  popish  faction  in  the  period 
quoted  of  the  English  history,  was  kept  alive  and  propelled 
to  make  attempts,  which  they  never  would  have  made, 
had  it  not  been  for  the  excitement  arising  from  a  prospect 
of  gaining  possession  of  executive  power;  so  here,  if  at  a 
future  day,  a  minor  and  monarchical  party  should  arise, 
that  also  will  be  propelled  and  excited,  by  the  chance  of 
getting  possession  of  executive  power,  to  keep  party  spirit 
alive,  and  to  make  attempts,  which  they  never  would  have 
made  if  no  such  excitement  existed.  Hence  the  amend¬ 
ment,  if  it  will  have  the  effect  of  depriving  a  minor  faction 
of  the  possibility  of  getting  possession  of  executive  power, 
will  suppress  and  not  provoke  party  and  faction. 

Mr.  President,  we  have  been  warned  by  a  picture  of 
the  evils  produced  by  the  French  revolution,  to  forbear  to 
amend  our  constitution  ;  for  what  end  I  am  at  a  loss  to 
conjecture.  Sir,  how  are  these  arguments  intended  to 
apply  to  the  people  of  the  United  States  ?  If  the  state  of 
national  information  in  France,  has  disqualified  the  great 
mass  of  that  nation  for  the  enjoyment  of  self  govern¬ 
ment,  does  it  therefore  follow,  that  the  people  of  Ameri¬ 
ca  are  disqualified  for  self  government  ?  If  this  state 
adapts  the  French  nation  for  the  species  of  government 
now  existing  in  France,  does  it  follow,  that  we  are  adapted 


(  134  ) 


for  a  similar  government  ?  Sir,  it  is  our  superior  de¬ 
gree  of  national  knowledge,  which  enables  us  safely 
to  use  national  opinion  as  an  element  of  govern¬ 
ment.  This  is  evinced  by  facts.  In  France,  con¬ 
stitutions  were  several  times  made  and  amended, 
without  producing  good  effect.  ;  in  America,  consti¬ 
tutions  have  been  in  many  instances,  perhaps  to  the  ex¬ 
tent  of  sixty  or  seventy  made,  repeated  and  amended, 
without  producing  the  least  disturbance  or  evil  effects 
in  a  single  case.  Changes  in  France,  even  often  for  the 
worse ;  here,  generally,  and  perhaps  constantly  for  the 
better.  It  is  because  the  public  will  is  here  rooted  in  a 
sufficient  degree  of  public  knowledge,  to  preserve  a  mo¬ 
derate  and  free  government.  Shall  we  sacrifice  this 
will,  and  the  right  to  amend  our  constitutions,  to  a  spe¬ 
cies  of  metaphysical  idolatry,  although  we  owe  to  these 
sources  all  the  prosperity  and  happiness  we  now  possess. 
For  the  doctrine  ;  “  that  it  is  a  species  of  political  sacri¬ 
lege  to  amend  constitutions,  and  that  the  people  should 
be  jealous  of  every  such  attempt;”  is  precisely  the  best 
means  to  destroy  the  right  in  the  people  to  do  so.  It  is 
a  doctrine  levelled  against  the  people  themselves,  under 
the  predominance  of  whose  will  the  right  can  only  be 
exercised  ;  and  tending  to  throw  this  mode  of  national 
self  defence  against  the  arts  of  avarice  and  ambition, 
into  the  back  ground ;  whilst  these  foes  can  carry  on 
their  incroachments  upon  liberty  and  property,  by  form 
of  law.  Let  not  then,  sir,  the  people  of  the  United  States 
be  deterred  from  exercising  their  right  to  alter  their 
constitutions,  so  frequently  and  so  successfully  exercised, 
by  a  picture  of  the  French  revolution. 

Finally  Mr.  president,  this  amendment  receives  my 
approbation  and  support,  because  I  think  it  conformable 
to  public  opinion,  evidently  the  special  recommendation 
of  sundry  states,  and  the  concurrence  of  a  great  majority 
of  the  representatives  of  the  people  in  the  other  house ; 
because  it  accords  with  the  principle  of  self  government 
that  this  expression  of  the  public  will  should  be  obeyed, 
that  the  right  of  the  nation  to  amend  the  form  of 
its  government,  should,  upon  that  ground,  be  sol¬ 
emnly  recognized ;  because  elections  the  result  of 
preference,  are  more  consistent  wi^i  moral  rectitude, 
than  those  influenced  or  guided  by  intrigue,  party,  arti¬ 
fice,  or  the  intrigues  of  diets  ;  and  because^it  was  the 
intention  of  the  constitution,  that  the  election  of  a  presi- 


(  135  ) 


dent  and  vice  president  should  be  determined,  by  a  fair 
expression  of  the  public  will  by  a  majority,  and  not  that 
this  intention  should  be  defeated  by  the  subsequent  oc¬ 
currence  of  a  state  of  parties,  neither  foreseen  nor  con¬ 
templated  by  the  constitution  or  those  who  made  it. 

Gen.  Jackson — the  gentleman  from  Connecticut  has 
alleged  that  the  Georgia  electors  had  consulted  him, 
and  that  there  was  an  intrigue,  and  seemed  to  insinuate 
something  about  bribery  ;  I  expect  that  gentleman  will 
explain  himself. 

Mr.  Tracy  said  he  had  meant  no  improper  imputa¬ 
tion  whatever  on  the  gentleman’s  character  ;  the  gen¬ 
tleman  had  talked  of  his  being  at  a  meeting  of  gentle¬ 
men  in  Georgia,  and  that  a  letter  had  been  received 
which  changed  the  intentions  of  the  Electors ;  and  he 
had  also  talked  of  intrigues,  and  it  certainly  appeared  as 
if  there  had  been  something  more  than  ordinary  elec¬ 
tion  proceedings  when  the  intention  was  changed  by  a 
letter.  He  then  observed  that  the  hour  was  late,  and 
moved  that  the  house,  when  it  adjourns,  adjourn  to 
Monday. 

The  question  was  lost. 

It  was  then  moved  that  the  house  adjourn  now — the 
question  was  taken  and  lost  by  a  large  majority. 

Mr.  Butler  hoped  gentlemen  would  not  do  one 
thing  and  tell  us  another ;  after  hearing  them  for  several 
hours  ;  after  sitting  without  refreshment  from  eleven  to 
now  near  six;  will  not  gentlemen  afford  us  an  opportuni¬ 
ty  to  deliver  our  opinions  upon  this  subject:  are  gentle¬ 
men  afraid  of  argument?  Or  do  they  wish  to  press  us 
to  debate  when  this  state  of  fatigue  renders  it  scarcely 
possible  to  do  justice  to  the  subject  or  ourselves.  As 
gentlemen  proceed  thus,  he  could  not  avoid  using  strong 
language,  and  must  say  that  he  conceived  such  conduct 
grievous  and  oppressive,  it  was  almost  tyrannical.  There 
were  other  gentlemen  beside  himself  who  wished  to  offer 
their  opinions,  and  he  hoped  they  would  not  persist  in 
forcing  a  great  portion  of  the  representatives  of  the  states 
to  a  vote  without  a  hearing  at  this  late  hour.  He  moved 
an  adjournment. 

Dr.  Logan — as  the  gentleman  wished  to  give  his  opi¬ 
nion,  he  hoped  the  house  would  adjourn. 

On  the  question-— yeas  12,  Noes  15. 

Mr.  Hillhouse  was  sorry  that  after  so  long  a  de¬ 
bate  he  should  be  obliged  to  trespass  on  the  house,  and 


(  136  ) 


perhaps  be  obliged  to  repeat  arguments  with  which  the 
house  was  already  familiar.  But  the  extraordinary 
speech  of  the  gentleman  from  Virginia  was  such,  that 
although  much  fatigued,  he  could  not  pass  it  by  without 
notice.  He  agreed  with  that  gentleman,  that  there  was 
danger  of  this  government  being  destroyed  by  idol 
worship  ;  the  framers  of  the  constitution  foresaw  and 
made  provision  against  it.  But  there  are  more  kinds  of 
idol  worship  than  one  ;  the  republics  of  antiquity  will 
bear  "witness  by  their  ruin,  to  the  existence  of  this  de¬ 
structive  idolatry.  It  is  that  idol  worship,  I  fear,  which 
blinds  the  gentleman  himself  to  the  consequences  of 
this  amendment,  though  in  general  he  would  allow  him 
to  be  distinguished  for  candor  and  fairness,  and  for 
which  he  admired  him.  What  is  the  position  which 
the  gentleman  lays  down  and  avows  ? — That  it  is  his 
purpose  to  prevent  a  minor  faction  from  carrying  a  vice 
president  into  that  chair.  Had  the  gentleman  laid  aside 
all  consideration  of  what  the  constitution  intended  ? — . 
Does  it  not  say  that  two  persons  shall  be  voted  for  as 
president  ?  And  what  was  the  object  of  this,  but  to 
afford  the  minority  an  opportunity  of  putting  in  one  of 
the  two.  But  gentlemen  will  say  this  is  not  reason¬ 
able  ;  he  thought  differently  ;  it  was  to  prevent  this  idol 
worship,  and  to  make  the  majority  look  about  them  ;  it 
was  to  prevent  any  one  state  domineering  over  the  rest, 
or  attempts  of  particular  states  to  carry  their  idol  at  all 
risks  ;  for  this  purpose  two  persons  "were  directed  to  be 
voted  for.  Your  amendment  proposes  to  persuade  the 
people  that  there  is  only  one  man  of  correct  politics  in 
the  United  States — your  constitution  provides  a  remedy 
against  this,  and  says  you  must  bring  forward  two. — 
If  the  majority  will  select  two  and  bring  them  fairly  for¬ 
ward,  how  is  it  possible  for  the  minority  to  bring  any 
forward  with  effect. 

He  would  suppose  a  case,  that  there  is  in  a  particular 
state  a  man  who  in  every  view  is  entitled  to  the  highest 
respect ;  and  so  popular  as  to  be  beyond  the  reach  of  com¬ 
petition  ;  according  to  the  laws  of  some  ancient  repub¬ 
lics  he  would  be  condemned  to  the  ostracism — and  bam 
ished ;  this  was  the  punishment  of  the  most  virtuous  and 
meritorous  men ;  they  were  banished  because  their 
popularity  made  them  dangerous  to  the  liberties  of  the 
republic — because  in  short  he  was  in  danger  of  becoming 
an  idol.  Our  constitution  more  wise  and  just  has  provi- 


(  137  ) 


and  a  more  safe  and  effectual  remedy ;  no  man  can 
become  too  popular;  for  it  there  is  a  portion  of  the  peo¬ 
ple  who  are  disposed  to  be  infatuated,  the  constitution 
provides  there  snail  be  two  candidates,  and  those  who  are 
not  infatuated  can  chuse  a  man  perhaps  not  so  popular, 
but  probably  possessed  of  equal  talents  for  the  station. — 
Had  the  convention  supposed  two  religious  sects  as  the 
Protestants  and  Catholics,  and  that  there  should  be  a  can¬ 
didate  from  each  sect,  the  gentleman’s  arguments,  drawn 
from  the  English  exclusion  bill,  would  be  parallel.  But 
here  they  have  the  right  to  chuse  two  Protestants,  or  two 
of  any  sect — and  the  comparison  of  course  is  not  perfect. 
What  avails  it  that  the  minority  should  propose  a  Catho¬ 
lic,  if  the  Protestants  lrave  a  majority.  They  may  select 
two  Protestants  and  the  two  will  have  the  major  vote. 

The  time  was  very  remote,  he  believed,  when  it  would 
be  in  the  power  of  any  man  to  wrest  the  power  out  of 
the  hands  of  the  people  of  this  country  ;  but  get  this  al¬ 
teration  made,  and  you  never  get  back  to  so  safe  a  station 
again.  At  some  future  day  an  artful  and  powerful  man 
will  rise,  as  has  been  the  case  in  all  nations,  and  by  this 
alteration  of  tne  constitution  if  he  can  command  a  majori¬ 
ty  of  votes,  he  will  take  possession  of  the  executive  chair, 
and  your  liberties  are  gone  ;  for  the  people  of  no  nation 
have  ever  knowingly  destroyed  their  own  liberties. 

When  a  whole  society  has  become  acquainted  with 
its  constitution,  changes  in  it  are  dangerous ;  every 
change  you  make  renders  the  knowlege  of  it  uncertain 
tothe  people  ;  and  the  uncertainty  is  equally  pernicious 
as  ignorance,  for  after  successive  changes,  is  the  time  for 
an  usurper,  and  then  the  friend  of  the  people  who  had 
stolen  away  their  hearts,  under  the  pretence  of  preserving 
their  liberties,  steals  them  away  too.  But  now  as  our 
constitution  stands,  you  have  every  guard  against  am¬ 
bition  ;  no  man  can  corrupt  the  whole  people  ;  and  if 
you  put  up  two  candidates  the  second  will  be  preferred 
to  the  first,  ifthere  is  any  danger  to  be  apprehended  from 
him.  . 

When  we  wish  to  promote  a  particular  object,  we  are 
too  apt  to  view  it  only  on  one  side.  The  gentleman 
from  Virginia  had  compressed  the  object  of  amendment 
in  one  expression — he  wished  to  prevent  a  minor  faction 
from  choosing  a  vice  president.  The  gentleman  from 
Tennessee  (Mr.  Cocke)  had  avowed  the  same  sentiment 
in  still  plainer  terms. 


S 


I 


(  138  ) 

It  was  most  certainly  a  wise  principle  to  guard  against 
evil ;  but  wisdom  requires  that  there  be  a  just  apprehen¬ 
sion  cr  a  real  evil.  He  did  not  believe  that  a  federal 
vice  president  was  an  evil  of  any  kind ;  the  gentleman 
had  indeed  talked  of  armies,  debts,  patronage,  and  soon; 
but  what  concern  have  the  senate  and  house  ol  repre¬ 
sentatives  in  those  evils  ?  They  have  not  the  command 
of  armies  ;  no  member  of  either  house  can  be  appointed 
to  them ;  the  evil  apprehended  from  these  things  can 
only  attach  where  the  command  devolves  upon  some  am¬ 
bitious  man,  as  the  gentleman  (Gen.  Jackson)  said,  above 
impeachment. 

He  was  sorry  the  gentleman  had  made  use  of  such 
epithets  as  the  minor  faction.  He  believed  when  that 
gentleman  was  in  the  minority,  he  did  not  think  him¬ 
self  a  member  of  a  faction  ;  difference  of  opinion  does 
not  constitute  faction  ;  and  a  free  government  always 
implies  the  right  of  tree  opinion.  He  was  in  a  minority, 
but  he  disclaimed  faction.* 

Mr.  Taylor  had  before  stated  that  his  arguments 
were  wholly  prospective  ;  not  present  or  retrospective  ; 
but  founded  upon  a  presumption  that  at  some  very  re - 
7 note  time,  there  may  be  a  monarchical  faction. 

Mr.  Hillhouse  wras  glad  of  the  explanation  ;  for  it 
could  not  be  supposed  that  he  was  a  monarchical  poli¬ 
tician,  nor  the  section  of  the  union  which  he  came  from, 
disposed  to  monarchy ;  he  would  never  consent  to  put 
up  any  man  as  a  candidate  for  office  who  was  in  favor  of 
monarchical  principles  ;  there  were  men  enough  in  this 
country  always  to  be  found  without  taking  up  men  of 
mat  description.  But  how  will  gentlemen  reconcile  their 
dishke  to  monarchy  with  their  dislike  of  federalism  also. 
Tne  expression  is  to  prevent  a  federal  vice  president 
being  elected  ;  this  comes  nearer  home  than  monar¬ 
chism.  Is  not  every  friend  to  this  government  a  fede¬ 
ralist — is  not  our  government  a  federative  republic. 
The  habits  and  feelings  of  every  man  in  this  country  are 
strictly  republican  ;  he  was  not  indeed  an  Utopian  re¬ 
publican,  nor  could  he  flatter  himself  that  the  time  would 
ever  arrive  when  every  man  would  think  alike  ;  he  should 

*  It  may  be  recollected,  that  this  epithet  faction  was  employ¬ 
ed  like  many  other  epithets,  such  as  disgraced  minister ,  by  Mr. 
Pickering  when  in  the  plenitude  of  his  might;  Mr.  Taylor  had 
not  this  in  mind- — this  Mr.  Pickering  is  now  in  the  minor  tac¬ 
tion!  Eeit. 


(  139  ) 


rejoice  to  see  such  a  time,  but  believed  it  would  not  ar¬ 
rive  before  the  millenium,  and  was  alike  the  creation 
of  an  heated  brain.  There  may  be  degrees  of  party 
spirit — more  or  less  asperity — but  there  never  will  come 
a  time  when  party  spirit  will  not  exist ;  never  will  come 
a  time  when  there  will  be  no  ambitious  men  aspiring  to 
power.  In  the  present  time  gentlemen  are  perfectly 
able  to  place  two  persons  of  their  own  opinions  in  the  two 
great  offices.  The  minority  cannot  do  it.  What  is  the  evil 
then  which  calls  for  this  amendment  ?  Is  it  from  a  fear  that 
the  minority  may  bring  forward  a  monarchical  charac¬ 
ter  ?  He  would  not  undertake  to  characterize  those  who 
brought  forward  a  man  whom  they  never  intended  for 
that  office.  If  they  have  done  an  improper  thing,  bought 
wit  is  best;  but  he  hoped  that  gentlemen  wouid  net  do 
away  the  salutary  checks  of  the  constitution. 

Mr.  Dayton  to  the  gentleman  from  Virginia  we  are 
indebted  for  two  lessons  in  ethics ;  formerly  he  advised 
us  to  moderation,  in  the  language  of  passion  ;  and  now  " 
he  tells  us  that  a  violation  of  the  constitution  is  a  case 
of  strong  morality ;  while  on  the  other  hand  the  gentle¬ 
man  from  Tennesse  had  nothing  farther  to  say  in  a  speech 
oi  an  hours  length.  He  would  follow  the  moderate  ad¬ 
vice  in  earnest,  but  he  hoped  he  wouid  be  permitted  to 
mourn  over  the  departed  dignity  of  that  house. 

He  would  repeat  to  gentlemen  what  they  had  so  of¬ 
ten  heard  in  this  debate,  that  this  venerated  cons¬ 
titution  was  the  result  of  compromise — and  you  are  now 
about  to  deface  it.  This  great  point,  the  most  difficult 
which  the  convention  had  to  determine,  the  succession  to 
executive  authority,  is  about  to  be  disturbed,  and  subject¬ 
ed  to  all  the  guilt  of  popular  passion  and  political  intole¬ 
rance.  Never  was  there  a  more  wise  opinion  uttered, 
than  that  in  amending  the  constitution,  you  are  not  to 
consider  so  much  what  the  constitution  ought  to  be,  as 
what  it  is.  Superficial  men  may  doubt  this — but  it  is  a 
solemn  truth. 

Gentlemen  should  consider,  that  in  framing  this  con¬ 
stitution,  a  due  regard  was  had  to  the  wealth  of  parti¬ 
cular  states  at  that  period  ;  three  fifths  of  a  particular 
species  ol  population  was  taken  into  the  distribution  of 
representation.  If  that  principle  were  to  be  fixed  now, 
would  the  same  distribution  upon  the  ratio  of  w  ealth 
take  place  ?  W  ould  it  be  said  that  Massachusetts  or 
other  eastern  states  are  worth  less  tlian  others,  who  have 


(  140  ) 


a  representation  extraordinary  on  account  of  wealth.  Yet 
upon  such  principles  is  the  constitution  established,  which 
you  now  wish  to  disturb.  If  it  takes  effect,  those  states 
will  claim  this  representation  of  wealth  also. 

The  gentleman  from  Maryland  (Gen.  Smith)  disclaim¬ 
ed  the  existence  of  combinations  and  clashing  of  states. 
He  presumed  this  was  because  there  was  no  law,  no  re¬ 
gulation  on  this  subject  in  the  statute  books,  because  it  is 
not  matter  of  record.  But  why  are  there  no  laws  ?  Be¬ 
cause  the  constitution  has  provided  equivalent  checks. 
If  a  combination  begins  in  the  large  states,  it  is  checked 
here  ;  if  in  the  small,  it  is  checked  in  the  other  house.  But 
does  it  follow  that  when  you  alter  your  constitution  no  such 
combinations  will  take  place  ?  He  had  often  thanked  God, 
that  there  was  one  sanctuary  here  nottobeprophanedby 
the  unhallowed  feet  of  amendment  makers — but  now 
even  this  prophanation  has  arisen  1 
vHe  had  heretofore  viewed  the  seventeen  states  like 
planets  moving  in  their  orbits,  equal  in  dignity  hut  dis¬ 
proportionate  in  size  ;  revolving  in  one  great  system  round 
the  federal  centre.  Henceforward  he  must  view  them 
converted  into  satellites  revolving  in  a  contracted  circle, 
and  actuated  by  no  concord  or  like  principle  of  action.— 
For  himself,  for  the  people  of  Jersey  whom  he  represent¬ 
ed,  he  would  protest  against  this  amendment  ;  his  con¬ 
stituents  were  too  proud  to  submit  to  it. 

Mr.  Pickering  said,  that  on  a  former  day  he  observ¬ 
ed  that  the  subject  of  amendment  had  been  but  super¬ 
ficially  considered  by  the  people  ;  it  had  not  attracted 
their  attention  generally  ;  and  where  it  had  been  taken 
up  by  the  legislature  of  New  York,  not  a  grammatical 
error,  but  a  palpable  absurdity  had  been  recommended. 
In  fact  the  amendment  was  predicated  upon  one  man 
being  voted  for,  yet  it  stated  that  if  two  had  a  majority 
certain  provisions  ought  to  be  made,  This  was  impos¬ 
sible  two  could  ret  have  a  majority.  He  was  aware 
that  formerly  it  had  been  thought  by  some  th at  there  was 
an  inconvenience  in  the  present  form  of  choosing  two 
persons,  but  he  did  not  see  it ;  and  at  that  time  some  distin¬ 
guished  men  reprobated  the  idea.  But  for  years  it  had 
not  been  attended  to,  and  he  believed  it  would  not  be  de¬ 
nied  by  his  brother  farmers,  if  he  was  to  say  that  they 
were  no  better  informed  than  himself.  He  must  think 
that  the  people’s  voice  is  not  easily  known. 

In  the  debates  it  was  said,  that  if  some  one  had  not 
given  way,  at  the  late  election  for  president,  a  civil  war 


(  141  ) 


\ 


would  have  taken  place  ;  and  the  gentleman  from 
Georgia  (Gen.  Jackson)  was  among  others  ready  to 
have  decided  the  question  at  the  point  of  the  bayonet. — . 
He  had  hoped  the  people  were  not  yet  so  corrupt,  as  to 
be  capable  of  involving  themselves  in  civil  war  for  one 
man.  He  had  heard  high  eulogiums  lavished,  great 
characters  drawn  in  orderly  words  ;  but  we  had  an  apt¬ 
ness  in  our  nature  to  blind  our  own  judgements  and 
people  will  differ  in  opinions  as  to  persons  while  the 
world  is  a  world.  He  had  a  feint  recollection  some- 
what  in  point. 

Some  think  Heaven’s  own  spirit  on  Calvin  fell 

While  others  think  him  the  instrument  of  Hell. 

It  was  avowed,  he  thought  with  more  simplicity  than 
discretion,  that  not  only  the  president  must  be  chosen  of 
the  same  political  opinions,  but  that  the  minority  shall 
never,  to  the  end  of  time  partake  of  the  election  of  those 
two  officers.  But  he  recollected  the  saying  of  a  venerat¬ 
ed  authority,  to  be  just  we  must  be  reasonable  ;  and 
though  majorities  may  be  overwhelming,  minorities  have 
their  rights  too. 

In  framing  the  constitution,  great  pains  were  taken 
with  this  part  of  that  instrument ;  for  a  long  time,  it  was 
contemplated  to  have  the  executive  chosen  for  seven 
years,  and  the  person  to  be  ever  after  ineligible ;  but 
towards  the  close,  the  present  plan  was  introduced,  and 
was  soon  more  admired  than  any  other  feature  of  the 
constitution. 

When  he  came  into  that  house  he  was  unprepared  to 
form  an  opinion  on  tins  subject  ;  and  had  it  been  precipi¬ 
tated,  lie  should  have  remained  so,  and  could  have  voted 
only  from  the  repugnance  he  always  felt  at  the  intro¬ 
duction  of  novelties  ;  or  by  the  reliance  which  he  should 
place  on  the  opinions  and  patriotism  of  others.  But 
upon  the  fullest  conviction,  after  examination,  he  was 
now  ready  to  vote  against  it.  After  what  has  been  so 
ably  said  by  the  gentleman  from  Connecticut,  (Mr. 
Tracy)  he  could  add  but  little  to  the  argument.  When 
we  were  colonics,  we  had  governors  and  lieutenant  go¬ 
vernors,  many  states  have  preserved  the  form,  and  they 
always  designated.  But  why  was  not  that  plan  adopted  .? 
Because  the  colonial  officers  were  elected  but  for  one 
year ;  and  if  the  lieutenant  governor  chosen  proved  to 
be  a  man  of  inferior  talents,  one  year  could  not  do  great 
mischief.  But  in  the  government  of  a  great  nation,  the 


(  142  ) 


period  of  four  years  is  as  small  as  could  be  eligible  ;  and 
the  same  reasons  that  would  render  the  choice  of  a  sui¬ 
table  person  for  the  one  office  applies  to  the  other,  who 
may  succeed  to  the  same  station.  But  the  constitution 
never  intended  either  should  be  designated  on  that  ac¬ 
count. 

It  has  been  often  said  the  public  mind  is  made  up  on 
this  subject ;  that  the  public  tvill  requires  it.  But  he 
supposed,  this  public  will,  is  founded  on  opinion  ;  and  for 
.  his  part  he  did  not  believe  the  public  mind  well  informed  ; 
no  one  ought  to  be  influenced  then  unless  this  will  were 
properly  expressed  ;  and  each  member  should  therefore 
act  according  to  his  own  idea  of  good.  Perhaps  the 
public  mind  may  mistake  or  is  under  a  delusion  ;  it  is 
our  duty  to  check  the  delusion  and  preserve  the  consti¬ 
tution  from  the  mischiefs  that  may  result. 

Gen.  Jackson — -the  gentleman  last  up  has  thought 
proper  to  notice  what  he  had  said  would  have  been  the 
effect  of  the  meditated  usurpation  at  the  last  election 
he  assured  that  gentleman,  that  however  much  he  might 
plume  himself  on  his  own  virtues ;  that  the  people  of 
Georgia  would  not  take  their  ideas  of  the  course  that 
ought  to  be  pursued  when  their  liberties  were  at  stake 
from  any  other  source  than  the  principles  of  virtue  and 
freedom.  The  gentleman  had  also  thought  proper  to 
notice  what  he  called  an  eulogium  upon  the  present  chief 
magistrate.  His  language  was  too  humble  and  inade¬ 
quate  for  that  great  and  good  man’s  eulogium ;  it  was 
far  beyond  any  form  of  words  which  he  could  employ,  to 
express  the  veneration  which  he  felt  for  him  ;  and  he  be¬ 
lieved  that  excepting  only  the  departed  W ashineton,  no 
man  ever  possessed  or  merited  more  of  the  affection  of  the 
people  of  America  than  he  did. 

But  not  content  with  noticing  my  tribute  cf  truth 
which  the  occasion  called  for,  and  which  the  gentleman 
questions  ;  he  has  given  the  senate,  what  it  was  to  be 
supposed  he  intended  for  poetry  ;  he  would  not  compli¬ 
ment  him  on  Ins  taste  for  selection,  any  more  than  on 
his  liberality.  The  verses  are  bad  enough,  and  the  ap¬ 
plication  worse  ;  they  reminded  him  of  the  speech  of 
Moloch,  in  the  second  book  of  Paradise  Lost.  But  ta¬ 
king  his  verses  as  thev  are,  he  was  content  to  believe 
the  first ;  the  gentleman  might  if  it  could  console  him, 
believe  in  the  second.  For  he  did  believe  that  the  Pre¬ 
sident’s  virtues  were  a  hell  to  him. 


(  143  ) 


t 


The  zeal  of  Georgia  appears  to  be  a  matter  of  sur¬ 
prise  to  the  gentleman.  But  it  is  by  no  means  surpri¬ 
sing.  Yv  hy  was  that  state  so  anxious  for  a  change  of 
administration  ?  Under  the  former  administration  her 
Rights.  violated,  her  govern mentjtreated  with  stu¬ 
died  insult.  In  discharge  of  his  duty  as  governor,  Tie 
’cotTlcTscarcely  get  an  answer  on  public  business  from  the 
department  of  state,  at  the  head  of  which  that  gentleman 
(Mr.  Pickering)  was  then  placed.  Under  that  admi- 
nistration  state  rights  were  degraded  ancTclis regarded ; 
we  saw  the  principles  oTTIm  revolution  brought  up  as 
topics  for  reproach,  and  we  saw  that  we  had  no  chance 
but  in  the  resort  to  first  principles — we  looked  up  to  the 
author  of  the  Declaration  of  Independence,  he  has  not 
disappointed  us — would  to  God  I  were  capable  of  doing 
justice  to  his  eulogium. 

Mr.  White  proposed  an  adjournment ;  he  feared  the 
fatigue  would  create  irritation  ;  some  warmth  had  al¬ 
ready  been  displayed — 

On  the  question  being  called  (10  minutes  past  7)  it 
was  lost. 

Mr.  Wright  would  offer  but  a  few  words.  It  had 
been  observed  that  our  government  is  the  result  of  a 
compromise.  So  are  all  federal  governments.  The 
reference  to  the  old  confederation  and  their  voting  by 
states  amounted  to  nothing  conclusive  ;  the  old  congress 
possessed  no  legislative  power,  they  had  only  an  execu¬ 
tive  and  recommendatory  power.  The  constitution  was 
produced  by  the  necessity  of  the  case ;  no  impost  could 
be  levied  by  the  old  congress,  and  to  preserve  the  bene¬ 
fits  of  the  revolution  Virginia  called  the  convention.  He 
could  not  account  for  the  opposi  ion  of  the  gentleman  from 
Delaware,  as  he  would  not  strike  the  amendment  out  if 
it,  formed  part  of  the  constitution. 

Mr.  White — The  gentleman  misapprehended  my 
expression. 

.Mr.  Wright — I  took  the  gentleman’s  words  down — 
they  were  these-— If  the  amendment  formed  part  of  the 
constitution  I  would  not  vote  for  striking  it  out.”  He 
then  went  very  largely  into  a  recapitulation  and  reply  to 
the  various  points  of  discussion,  and  asked  if  it  was  con¬ 
sistent  with  the  principles  of  the  government  that  our 
laws  should  be  like  those  of  the  Medes  and  Persians, 
their  form  immutable  and  error  eternal.  He  asked  if 
gentlemen  would  not  think  it  a  hard  case  if  men  were 


(  144  ) 


placed  in  the  two  first  o Sices  of  government  who  were 
neither  the  choice  nor  agreeable  to  either  party  ?  \  et  this 
would  not  be  more  inconsistent  or  absurd  than  to  have 
any  one  man  so  placed  contrary  to  the  fundamental  prin¬ 
ciple  of  representative  government,  the  will  of  tne  majo¬ 
rity.  Every  gentleman  must  recollect  what  a  scene  was 
exhibited  in  the  legislature  of  Pennsylvania  at  the  late 
election,  which  could  have  its  origin  in  intrigues  alone, 
and  which  ended  at  length  in  a  compromise  which  gave 
the  most  populous  state  in  the  union  the  real  value  of  no 
more  than  one  vote  ;  the  same  intrigues  existed  in  Jersey, 
where  an  organized  plan  existed  to  place  a  man  in  the 
executive  chair  against  the  wish  s  of  the  nation,  unchosen 
and  unintended  for  the  executive  chair  by  either  party. 

Here  we  provide  a  remedy  for  such  evils — we  of  cr 
you  the  certain  means  of  frustrating  and  rendering 
them  hopeless  ;  we  offer  you  a  designation.  But  it  is 
said  this  is  a  party  question.  Gentlemen  appear  not  to 
look  round  them  ;  or  to  overlook  facts  staring  them  in 
the  face,  do  we  not  see  gentlemen  of  opposite  parties 
in  politics  on  both  sides  of  this  question  ?  Is  it  from  par¬ 
ty  views  the  gentleman  from  South  Carolina  opposes  it? 

He  was  as  much  a  friend  to  the  principles  of  a  majo¬ 
rity  governing  as  any  man,  but  here  it  was  a  different 
question  which  he  thought  principally  concerned— it  is 
to  prevent  the  disgrace  and  injuries  of  intrigues  ;  it  is 
to  prevent  men  not  intended  to  be  chosen  from  being 
edged  into  power.  At  the  last  election  what  did  we 
see  ?  An  attempt  made  by  a  party  in  truth  hostile  to  the 
man  at  that  time,  endeavouring  to  put  him  into  the  ex¬ 
ecutive  chair  !  And  for  what  purpose  ?  For  the  purpose 
cf  confusion— to  distract  and  divide  the  country,  and  to 
lay  the  foundation  of  another  factious  administration  on 
one  already  humbled  by  public  indignation.  Had  they 
succeeded  in  corrupting  a  single  man  from  his  duty, 
would  it  not  have  been  usurpation  ©f  the  worst  species. 
What  did  his  colleague  say,  that  after  this  project  of 
wrong  had  failed,  another  was  meditated,  it  was  even 
supposed  to  set  up  a  man  who  had  not  a  single  vote,  and 
that  had  they  attempted  to  carry  it  into  execution,  the 
people  would  not  bear  it.  And  the  gentleman  from 
Connecticut  expresses  his  astonishment  that  the  people 
would  not  bear  usurpation,  while  he  confesses  that  his 
section  of  the  union  would  have  been  quiet  spectators 
of  the  act  1  He  knew  that  the  people  of  Maryland  felt 


t 


(  145  ) 

✓ 

t!ie  danger  and  were  determined  to  resist  it,  not  with 
their  arms  folded  'out  with  energy  oi  freemen,  and  such 
was  the  sensation  which  the  meditated  wrong  had  occa¬ 
sioned,  such  was  tne  spirit  of  the  people  La  resist  it,  that 
some  of  the  most  opulent  men  in  the  state  found  it  time 
to  interfere. 

This  amendment  then  is  intended  to  prevent  the  re¬ 
currence  oi  such  alarming  dangers.  Does  it  deprive 
any  one  or  any  state  of  a  right  ?  Is  it  not  fit,  that  if  I 
am  called  on  to  vote  for  president  and  vice  president  that 
I  should  have  my  free  choice  ?  Is  it  then  consistent 
with  reason  that  I  should  be  compelled  to  vote  for  one 
man  upon  equal  terms  whom  I  do  not  think  has  equal 
talents  or  equal  claims  to  my  confidence?  Is  it  fair  that 
I  should  be  reduced  to  the  alternative  of  choosing  a  wise 
man  and  a  fool,  in  order  to  give  the  former  a  chance.  Are 
not  the  small  states  as  well  secured  by  this  amendment 
as  the  large  ?  If  this  amendment  was  not  intended  why 
has  it  not  been  guarded  like  those  parts  which  cannot  be 
changed  before  1808  ?  In  this  senate  the  small  states 
have  tneir  security- — -their  equal  representation,  and  in 
the  provision  against  any  change  being  made  in  their 
representation  here  without  the  consent  of  each. 

The  gentleman  from  Massachusetts  (Mr.  Adams)  has  I 
drawn  all  his  eloquence  in  force,  he  has  collected  all  hi#  ! 
vengeance,  and  pours  out  the  vials  of  his  wrath  upon  \ 
Virginia.  Why  this  vehement,  this  toothless  rage 
against  that  state,  which  in  evil  times  had  indeed  stood 
firm,  the  rock  of  our  political  salvation  ;  to  whom  we 
looked  in  the  hour  of  adversity  for  counsel,  for  succour, 
for  statesmen  and  leaders  of  our  armies.  To  her  we  ( 
were  indebted  for  a  Washington,  and  is  itbecause  we  are  I 
indebted  to  her  for  other  great  men  that  this  jealous  f. 
rage  is  vociferated  against  her.  Is  it  to  be  supposed  that  j\ 
with  her  24  votes  for  president  she  can  controul  all  the  ' 
rest  ?  We  hold  the  true  federative  counterpoise,  the 
other  house  has  the  democratic  or  popular,  for  he  knew  no 
difference  Nine  or  ten  are  destined  to  be  small  states, 
and  will  always  have  a  majority  here  ?  Gentlemen  when 
they  cannot  make  good  their  case  by  argument  or  fact, 
endeavor  to  make  it  out  as  well  as  they  can.  Hence  we 
have  the  declamation  about  small  and  large  states,  and 
hence  so  many  warnings  against  touching  the  constitu¬ 
tion.  But  who  are  they  who  wish  to  tear  up  this  con¬ 
stitution  ?  1  wo  propositions  have  been  offered  of  inii- 

T 


(  146  ) 


nitely  more  force  on  the  principles  of  the  constitution- 
one  to  abolish  the  office  of  vice  president  altogether,  the 
other  to  limit  the  election  of  president.  We  wish  to 
provide  against  an  evil  not  foreseen,  and  to  supply 
the  deficiency ;  the  gentlemen  wish  to  tear  a  part  of 
the  constitution  altogether.  And  who  have  proposed 
and  advocate  these  erasures  ?  The  opposers  of  this  amend¬ 
ment.  So  that  when  reverence  for  the  constitution  is 
spoken  of  these  amendments  must  be  abandoned.  Ex¬ 
perience,  sir,  is  worth  a  thousand  volumes  of  experiments. 
Had  it  been  foreseen  at  the  last  election,  that  such  events 
,  could  have  proceeded  from  the  principles  of  honor  and 
good  faith  being  rigidly  observed  by  the  republicans, 
many  would  have  opposed  their  uniform  vote  and  cast 
their  vote  away  rather  than  lay  the  country  open  to  in¬ 
trigue  and  its  consequences. 

He  had  thought  the  number  five  would  equally  answer 
the  purposes  of  election.  Arguments  had  convinced 
him  that  three  would  be  still  more  safe  ;  because  it 
would  give  the  greater  certainty  of  a  choice  by  the  peo¬ 
ple.  And  was  there  a  man  in  that  house  who  would 
dare  to  say  that  the  people  ought  not  to  have  the  man  of 
their  choice  ?  They  look  for  the  security  of  that  right, 
and  the  principle  of  designation  secures  it.  Is  there  any 
man  who  as  an  elector  would  prefer  the  uncertainty  of 
two  for  the  certainty  of  one.  Some  affect  to  say  we 
strike  at  fundamental  principles.  But  we  say  we  wish  to 
strike  at  error  and  give  stability  to  republican  represen¬ 
tative  principles.  The  constitution  says  the  president 
shall  be  chosen  by  electors  ;  he  believed  there  was  a  mi¬ 
litant  spirit  against  democratic  republican  principles 
which  would  take  the  power  from  the  people  and  their 
electors,  which  would  fly  in  the  face  of  the  constitution 
itself  and  tell  the  people  it  ought  not  to  be  amended  ;  that 
error  should  be  perpetual,  and  experience  fruitless ;  this 
was  notoriously  avowed.  Our  greatest  blessing  and  our 
first  pride  is  that  we  have  the  power  and  the  right  to 
amend,  and  to  redress  wrongs  without  the  resort  to  arms 
which  nations  are  ever  exposed  to,  where  abuses  are  ren¬ 
dered  sacred  and  hereditary.  On  the  subject  of  this 
amendment  so  far  as  it  concerns  designation,  he  believed 
the  public  mind  could  not  be  better  known ;  could  three 
fourths  of  our  legislatures  and  two  thirds  of  both  houses 
of  congress  commit  treason  and  treachery  on  themselves. 
He  was  decidedly  for  the  amendment,  and  for  the  num¬ 
ber  3. 


(  147  ) 


Mr.  White — the  gentleman  says  the  old  congress  had 
no  legislative  powers.  Did  they  not  raise  armies,  emit 
money,  both  high  legislative  acts  ? 

Mr.  Wright — the  gentleman  is  wholly  mistaken,  the 
several  states  raised  armies,  and  monies  were  raised  by 
state  contributions — all  the  power  they  had  Avas  to  re¬ 
commend  to  the  states  and  make  requisitions  upon  the 
state  grants. 

The  question  on  inserting  the  number  3  was  put  (at 
ten  minutes  past  8  o’clock  p.  m.)  and  carried — 2 1  yeas 
1 1  navs. 

J 

Mr.  Dayton  asked  if  the  question  could  be  taken  on 
the  whole  of  the  designating  amendment,  without  deci¬ 
ding  upon  the  remainder  of  the  report  ?  * 

Mr.  Butler  you  assuredly  cannot  decide  upon  the 
first  part  without  deciding  upon  the  whole  of  the  report, 
unless  you  do  it  by  power  ;  and  you  can  do  any  thing, 
as  judge  Blackstone  says,  by  power,  but  make  a  man  of  a 
woman.  Power,  however,  appears  to  be  the  order  of  the 
day ;  tho*  he  hoped  the  chair  will  do  so  much  justice  to 
himself  as  to  acknowlege  that  we  have  been  hitherto 
in  a  committee  of  the  whole.  Some  gentlemen  had 
spoken  so  often  as  nine  or  ten  times  in  the  debate,  and  in 
the  house  that  would  have  been  contrary  to  order.  The 
object  of  his  wishes  was  to  probe  innovation.  If  we  have 
hitherto  been  in  a  committee  of  the  whole,  as  this  is 
only  a  part  of  the  report,  of  course  it  will  stand  as  it  is, 
and  we  may  proceed  to  the  remainder  of  the  report. 
Tho’  from  what  he  had  already  seen  he  did  not  expect 
the  indulgence  that  he  thought  was  due  to  every  mem¬ 
ber  of  that  house  ;  and  it  wras  not  impossible  that  it  was 
meant  to  press  into  a  different  course.  If  so,  gentlemen 

*  This  question  had  reference  to  the  following  amendment 
proposed  by  Mr.  Butler  for  limiting  the  period  for  which  a  pre¬ 
sident  should  be  elected,  and  which  was  not  acted  upon. 

“  Resolved,  by  the  senate  and  house  of  representatives  of  the 
United  States  of  America  in  congress  assembled,  Two  thirds 
of  both  houses  concurring,  that  the  following  amendment  be 
proposed  to  the  legislatures  of  the  several  states  as  an  amend¬ 
ment  to  the  constitution  of  the  United  States,  which  when  ra¬ 
tified  by  three  fourths  of  the  said  legislatures,  shall  be  valid  to 
all  intents  and  purposes,  as  part  of  the  said  constitution,  to  wit : 

“  That  no  person  who  has  been  twice  successively  elected 
president  of  the  United  States,  shall  be  eligible  as  president,  un¬ 
til  four  years  shall  have  elapsed  :  but  any  citizen  who  has  been 
president  of  the  United  States,  may,  after  such  intervention,  be 
eligible  to  the  office  of  president,  for  four  years,  and  no  Unger.” 


(  148  ) 


should  look  to  -what  the  people  of  the  United  Stales 
would  say,  when  they  see  the  doors  closed  against  all 
dispassionate  discussion  and  all  opportunities  open  to  one 
side  only  of  the  house.  There  was  an  example  of  this 
kind  given  by  the  colonel  on  his  left  (Mr.  Cccke')  who 
after  making  a  speech  of  an  hour  sits  down  and  roars 
out  the  cjuestion  the  question.  Unless  gentlemen  mean 
to  practice  the  same  indelicacy  as  two  hours  ago. 

The  President  wished  to  interrupt  the  gentleman 
for  a  moment — barely  to  inform  him  that  the  question 
has  never  been  before  a  committee  of  the  whole. 

A  desultory  conversation  on  the  point  of  order  here 
took  place,  in  which  Messrs.  Nicholas,  Butler,  Tracy, 
Gen.  Smith,  Dayton,  Taylor,  Franklin,  Hill  house  and 
Adams  spoke  a  few  moments  each.  In  which  it  was 
contended  that  the  first  amendment  could  not  be  decided 
on  without  first  deciding  on  the  second  amendment  which 
was  reported  by  the  same  committee. 


On  the  other  side  it  was  maintained  that  the  amend¬ 
ment  for  designation  was  a  separate  proposition,  and 
might  be  voted  upon,  whether  the  other  was  voted  upon 
or  not;  that  the  other  amendment  might  be  called  up  at 
any  time  without  interfering  with  tne  principle  or  the 
passage  of  that  now  before  tii  e  house. 

The  president  decided  that  the  question  now  was  on 
agreeing  to  the  resolution  as  amended.  Upon  which 
the  yeas  and  nays  were  demanded  and  were  as  follows. 


YEAS, 


Messrs. 

Anderson, 

Condit, 

Potter, 

Bailey, 

Ellery, 

Ts.  Smith, 

Baldwin, 

Franklin, 

Sam.  Smith, 

Bradley, 

Jackson, 

John  Smith, 

Breckenridge, 

Logan, 

Stone, 

Brown, 

Maclay, 

Taylor, 

Cocke, 

Nicholas, 

NAYS. 

Worthington, 
Wright — 22. 

Messrs. 

Adams, 

Hillhouse, 

Plumer, 

Butler, 

Olcott, 

T  racy, . 

Dayton, 

Pickering, 

Wells, 

White — 10. 

Mr.  Adams  thought  it  proper  for  him  at  this  stage  to 
notice  some  observations  directed  to  him.  It  had  been 
presumed  that  he  had  expressed  some  solicitude  about 
the  election  ot  a  federal  vice  president;  he  had  expressed 
nothing  which  could  countenance  a  solicitude  about  the 


election  of  a  federal  or  anti-federal  vice  president ;  but 


I 


(  149  ) 


lie  had  indeed  noticed  that  the  amendment  appeared  to 
him  as  intended  directly  to  affect  the  next  election ;  tho’ 
at  the  same  time  as  far  as  related  to  himself  he  turned  out 
of  the  consideration  every  idea  of  its  effect  on  any  single 
case  ;  he  looked  to  it  as  it  would  affect  a  century  to  come— - 
he  never  meant  to  take  the  diameter  of  the  earth  for  the 
measure  of  a  barley  corn.  The  gentleman  from  Maryland 
(Mr.  W  ight)  had  charged  him  with  pouring  out  the  vials 
of  his  wrath  on  Virginia ;  he  was  not  conscious  of  utter¬ 
ing  any  degree  of  wrath  against  Virginia,  and  could  not 
be  persuaded  that  he  had  uttered  what  he  certainly  never 
felt,  so  far  from  wrath  he  had  ever  entertained  for  that 


state  the  highest  respect,  as  producing  the  greatest  men 
of  our  revolution.  It  was  true  indeed  that  when  he 
heard  a  gentleman  from  that  state  holding  forth  what  he 
had  then  considered  as  a  menace,  he  had  felt  some  irri¬ 
tation  ;  and  when  he  compared  it  with  the  mould  and  pro¬ 
cess  of  the  measure  before  us  that  was  increased;  and 
had  he  not  been  convinced  J:hat  no  menace  was  intended 
by  subsequent  explanations  he  should  have  entertained 
a  serious  alarm.  His  impressions  were  generally  on  the 
subject,  that  no  regard  has  been  paid  to  the  permanent 
operation  of  the  measure,  but  that  all  argument  has  been 
drawn  from  the  last,  and  all  consequences  are  calculated 
for  the  next  election.  From  the  open  avowal  of  the 
gentleman  from  Maryland  (Gen.  S.  Smith)  to  the  la¬ 
boured,  ingenious,  and  eloquent  arguments  of  the  gen¬ 
tleman  from  Virginia  (Mr.  Taylor)  all  had  this  tendency 
and  that  view  only. 

To  the  designating  principle  itself  he  had  no  objec-  < 
tion,  and  believed  it  calculated  to  be  productive  of  good. 

Uut  when  he  heard  gentlemen  talk  of  the  jealousy  of 
states,  he  had  little  expected  to  find  a  mixture  of  argu-  ?  y 
ment  drawn  from  English  corruptions  and  degeneracy, 
applied  to  our  home  institutions.  When  jealousy  of'  ^ 
executive  power  was  spoken  of,  so  much  like  the  un-r  ) 
meaning  noise  out  of  doors,  he  had  expected  that  after 
adding  fifteen  millions  to  the  public  debt  at  a  blow ;  when 
80,000  men  were  proposed  to  be  placed  at  the  will  of  the 
executive — when  by  four  short  lines  the  whole  of  the 
arbitrary  power  of  the  Spanish  king  over  his  subjects  in 
Louisiana  was  transferred  to  the  executive  with  all  the 
consequent  patronage,  he  did  not  expect  to  hear  armies, 
debts  and  patronage  introduced  in  the  debate.  When 
declamation  of  this  kind  is  given,  the  best  return  that  can 
be  expected  is  declamation  of  the  same  species. 


y 


(  150  ) 


Gen.  S.  Smith  had  not  intended  at  any  hour  to  have 
taken  a  further  part  in  this  debate  ;  but  when  he  found 
gentlemen  resorting  to  stratagem  when  sound  argument 
failed  them,  and  words  and  sentiments  are  tortured  from 
their  intention,  he  could  not  remain  silent.  It  requires 
very  little  ingenuity  to  lop  off  a  part  of  a  sentence  even 
in  scripture,  and  to  make  the  remainder  blasphemy ; 
though  the  whole  sentence  as  written  were  the  most  so¬ 
lemn  truth.  The  gentleman  from  Jersey,  (Mr.  Dayton) 
thinks  it  consistent,  perhaps,  to  construe  words  which 
never  had  that  meaning  as  a  threat.  He  would  beg 
leave  to  notice  a  mistake  of  the  gentleman  from  Massa¬ 
chusetts,  (Mr.  Adams)  who  had  charged  him  with  an  open 
avowal  that  the  sole  object  of  the  amendment  was  to  pre¬ 
clude  the  election  of  a  vice  president ;  he  had  said  that 
it  would  certainly  have  that  effect ;  and  that  the  effect 
would  be  proper  and  conformable  to  the  spirit  and  inten¬ 
tion  of  the  constitution  ;  and  he  approved  of  it  for  that 
reason,  for  under  the  existing  mode  the  people  who 
wished  to  secure  a  proper  person,  or  that  person  in 
whom  they  have  the  greatest  portion  of  confidence, 
would  be  obliged  to  throw  their  votes  away,  and  make 
no  choice  of  the  second  officer,  or  leave  the  choice  to 
chance.  But  how  could  the  gentleman  say  himself,  or 
think  him  guilty  of  the  absurdity,  in  supposing  that 
this  amendment  originated  and  was  conducted  solely 
with  a  view  to  the  next  election,  and  that  only  ;  or  that 
ail  arguments  were  drawn  from  the  last  election  ?  If  he 
recollected  correctly,  the  subject  of  this  amendment  was 
brought  forward  several  years  ago,  by  the  representa¬ 
tive  of  a  small  eastern  state,  Mr.  Abiel  Foster,  of  New 
Hampshire.  At  that  period  those  persons  were  of  the 
predominant  party.  But  they  tell  us  it  was  not  then 
carried.  And  why  not  ?  Most  probably  because  they 
could  not  find  members  convinced  of  its  necessity,  it  was 
proposed  before  the  last  election,  and  that  event  has  con¬ 
vinced  every  one  who  before  doubted.  After  all,  if  the 
legislatures  do  not  think  proper  to  adopt  it,  it  cannot 
pass. 

Mr.  Tracy — we  are  told  this  is  a  proposition  for  the 
legislatures  ;  but  will  its  passage  through  congress  have 
no  influence  on  the  votes  of  the  states,  will  the  legisla¬ 
tures  not  say  two  thirds  of  both  houses  of  congress  passed 
it,  and  they  would  not  deem  it  necessary  if  it  was  not 
good.  But  here  we  have  legislatures  prompting  us  to  this 


(  15!  ) 

•  r  / 

measure,  and  it  goes  back  to  them  again  for  their  deci¬ 
sion  ;  that  this  is  a  measure,  a  measure  in  a  hoop,  it 
comes  and  goes  whence  it  came 

The  gentleman  complains  of  attacks  made  on  Virginia, 
it  was  never  meant  to  reproach  Virginia.  But  the  gentle¬ 
man  tells  us  we  must  make  an  exclusion  bill,  and  he 
tells  you  of  the  consequences  if  you  do  not,  in  order  to  in¬ 
duce  you  to  pass  it.  He  admired  the  gentlemanly  manner, 
the  openess  and  good  nature,  and  he  was  certain  that  he 
never  meant  to  kill  us  outright,  but  he  will  exclude 
us.  We  know  very  well  what  was  intended  by  the  bill  for 
the  exclusion  of  popish  recusants,  and  that  with  regard  to 
the  objects  of  the  measure  we  stand  precisely  in  their 
place.  This  was  the  very  condition  of  the  gentleman ; 
he  supposed  aminority  had  no  rights,  beside  that  of  being 
trampled  upon — and  he  is  for  bringing  in  a  bill  of  exclu¬ 
sion.  He  says  he  does  not  quote  words,  he  caught  ideas 
not  words.  He  has  given  a  key  for  his  ideas — they  go  to 
the  total  extirpation  of  the  sect  of  federalists — as  the  ex¬ 
clusion  bikl  went  to  the  total  exclusion  of  the  sect  of  po¬ 
pish  recusants. 

If  gentlemen  wish  to  shake  the  constitution  to  pieces, 
if  majorities  must  decide  every  thing,  why  not  go  at  once 
to  a  simple  democracy.  There  were  many  who  did  not 
think  the  constitution  sufficiently  democratical.  The 
gentleman  thinks  so  perhaps,  for  he  tells  that  a  consti¬ 
tution  may  be  preserved  while  the  liberties  of  the  people 
are  destroyed  ;  he  wishes  you  to  go  to  the  spirit  which  is 
democracy,  and  against  which  we  guard.  But  he  would 
not  consent  to  go  to  that  spirit  for  his  remedy. 

Mr.  Breckenridge — the  gentleman  last  up,  had  in¬ 
sisted  on  two  or  three  arguments  before  repeated,  that 
he  thought  proper  to  notice  him.  He  insinuates  that 
we  are  destroying  principles.  But  the  gentleman  has 
lost  sight  of  the  amendment  altogether,  where  no  prin¬ 
ciple  is  in  the  smallest  degree  violated.  He  has  indi¬ 
rectly  questioned  the  democratic  principles  of  the  con¬ 
stitution  ;  but  in  the  course  of  three  weeks  discussions, 
for  the  first  time  he  had  heard  any  thing  even  glancing  at  a 
denial  of  the  people’s  right  to  chuse  the  executive  thro’ 
the  medium  of  electors.  What  is  this  clamour  about 
large  and  small  states  ?  It  has  nothing  to  do  whatever 
with  the  question.  The  true  and  only  point  is  what  will 
be  the  best  mode  of  effectuating  the  choice  ;  we  hold 
that  the  amendment  is  that  best  mode.  If  any  princi- 


(  152  ) 


pie  is  more  sacred  and  all  important  for  free  government 
it  is  that  elections  should  be  as  direct  as  possible,  in 
proportion  as  you  remove  from  direct  election  you  ap¬ 
proach  danger.  And  if  it  were  practicable  to  act  without 
any  agents  in  the  choice,  that  would  be  preferable  even 
to  the  choice  by  electors.  But  if  you  \vish  to  elect  A 
and  you  are  so  placed  as  that  B  is  elected  contrary  to 
your  wishes  can  you  say  that  this  is  a  reasonable  and 
just  process.  Has  it  not  always  been  insisted  that  the 
two  characters  chosen  at  the  last  election  were  equally 
estimable.  Why  then  was  there  any  hesitation  ?  Why 
has  public  opinion,  so  ready  to  declare  itself,  never 
uttered  a  sound  of  discontent  at  the  issue,  while  the 
nation  was  aimost  in  arms  at  the  retardment  of  the 
choice.  Had  the  now  vice  president  been  placed  by 
whatever  secret  means  in  that  chair,  is  there  a  man  who 
now  hears  who  would  not  say  it  was  contrary  to  the  in¬ 
tention  of  the  people  ?  If  ever  public  opinion  was  more 
strongly  known  on  any  point  than  another,  it  is  on  tnis. 
Nine  states  he  believed  had  testified  their  wishes  on  the 
subject.  New  Hampshire,  New  York,  Vermont,  Mas¬ 
sachusetts,  Tennessee,  North  Carolina,  and  Ohio,  have 
in  the  most  solemn  manner  recommended  it.  If  the 
gentlemen  from  Massachusetts  or  one  of  them  particu¬ 
larly  (Mr.  Pickering)  are  in  doubt  as  to  the  understand¬ 
ing  or  information  cf  their  constituents  on  the  subject, 
there  can  it  is  presumed  be  no  doubt  but  the  other  house 
understand  both  the  subject  and  the  opinions  of  the 
people  whom  they  so  immediately  represent.  And  this 
supposed  ignorance  is  a  reply  to  the  gentleman  from 
Connecticut.  It  is  to  be  presumed  if  they  are  now  igno¬ 
rant,  that  when  the  amendment  comes  before  them  they 
wiil  possess  new  lights — and  that  aii  danger  win  t>e  avoid¬ 
ed  by  their  watchfulness. 

Mr.  Butler  had  allowed  every  gentleman  to  speak, 
though  he  had  early  in  the  debate  signified  his  intention 
to  offer  a  few  observations  on  this  important  subject, 
which  it  was  his  lot  to  oppose  from  a  conviction  of  its 
injurious  tendency.  He  had  gratified  himself  in  the 
opening  of  the  discussion  with  the  expectation  that  the 
regularity  of  proceeding  would  be  such,  that  we  should 
never  more  hear  the  voice  of  menace  or  of  civil  war,  words 
which  should  never  enter  the  walls  of  that  senate  any 
more  than  the  most  vulgar  expressions.  But  the  hour 
was  late.  But  the  gentleman  from  Kentucky  says  that 


(  153  ) 


you  should  not  remove  the  election  farther  from  the  peo¬ 
ple,  and  he  appears  to  think  that  at  the  late  election  the 
disposition  to  place  a  man  not  intended  in  the  chair,  was 
the  consequence  of  that  form  of  proceeding*.  Whatever 
may  be  the  sentiments  or  wishes  of  the  individuals  who 
vote,  he  could  take  upon  him  to  say  what  was  the  in¬ 
tention  of  the  constitution ;  the  framers  of  that  instru¬ 
ment  were  apprehensive  of  an  elective  chief  magistrate  ; 
and  their  views  were  directed  to  prevent  the  putting  up 
of  any  powerful  man ;  that  for  this  end  the  states  should 
chuse  two,  and  that  as  public  suffrage  would  be  common 
to  both,  that  either  would  be  alike  eligible,  and  it  was 
totally  immaterial  which — he  feared  that  the  election  of  a 
single  individual  might  exhibit  all  the  evils  which  afflicted 
Poland. 

One  observation  he  owed  to  the  side  he  had  taken  in 
this  debate,  it  had  been  suggested  abroad  that  he  had 
changed  his  opinion  from  being  in  favor  to  an  opposition 
of  the  amendment.  This  was  not  so,  for  when  the  amend¬ 
ment  was  introduced  he  had  avowed  his  purpose  to  op¬ 
pose  it.  He  was  more  confirmed  when  he  heard  argu¬ 
ments  employed  avowing  the  determination  to  remove 
every  possibility  of  an  election  in  the  house  of  represen¬ 
tatives,  and  for  this  reason  that  the  smaller  states  having 
fewer  representatives  in  that  house,  would  be  exposed  to 
the  corruption  of  any  designing  man,  and  they  might  be 
made  the  instruments  of  national  ruin  as  the  rotten  bo¬ 
roughs  of  England  have  in  the  hands  of  the  king  of  that 
country. 

If  the  small  states  then  are  mere  rotten  boroughs,  and 
their  representatives  liable  to  corruption,  is  the  evil  re¬ 
medied  by  this  amendment  ?  He  asked  if  only  two  were 
to  be  voted  for  and  had  equal  votes  would  it  not  then  go  to 
the  house  of  representatives  as  much  as  if  there  were 
five  from  which  to  make  a  choice.  But  the  time  which 
has  been  expended  in  this  discussion  has  only  served  to 
render  more  conspicuous  the  anxieties  by  which  it  is 
pressed  forward.  A  gentleman  has  asked  us  shall  a  fac¬ 
tious  minority  give  a  vice  president  to  the  United  States  ? 
Aye  there’s  the  rub  I  He  had  thought  that  the  reproach¬ 
ful  epithet  of  faction,  that  all  heat  and  animosity  of 
party  should  long  since  have  been  buried  and  the  repre¬ 
sentatives  of  the  small  states  he  hoped  would  see  that 
they  were  hound  by  duty  and  by  feeling  not  to  suffer  the 


(  154  ) 


votes  to  go  along  with  those  reproaches ;  for  with  that 
vote  would  pass  a  very  material  part  of  their  sovereignty. 

A  great  deal  had  been  said  to  remove  this  idea  of  the 
jealousy  of  the  states,  and  that  it  was  only  a  stratagem 
set  up  for  the  occasion.  Whatever  gentlemen  might 
say  on  that  subject  he  would  say  to  the  small  states, 
with  the  orator  of  Greece—' Beware  of  Macedon! ”  Be¬ 
ware  of  the  great  states  I  In  this,  however,  there  was  one 
exception,  lie  would  exclude  the  state  of  Pennsylvania ; 
and  civil  liberty  was  better  understood  and  practised 
there  than  in  any  age  or  in  any  part  of  the  world.  He 
had,  however,  seen  something  very  like  this  combina¬ 
tion  of  states — and  thought  it  behoved  the  small  states 
to  watch  them,  else  they  would  monopolize  the  whole  of 
the  executive  departments ;  and  the  moment  that  vras 
accomplished,  farewell  to  the  republic,  it  would  no  longer 
exist — it  would  be  succeeded  by  a  high  haughty  aristoc¬ 
racy  of  states,  with  an  executive  moulded  and  accommo¬ 
dated  to  their  views. 

When  you  pass  this  you  plant  the  seed  of  discord— 
the  dissolution  of  federalism.  He  thought  that  after  a 
contention  of  seven  years,  with  a  party  who  he  had 
thought  abused  their  power,  the  time  was  come,  when  a 
better  course  would  have  been  pursued  ;  he  had  con¬ 
ceived  that  principles  would  have  prevailed,  and  that 
men  would  not  absorb  every  consideration  ;  but  with  a 
member  of  the  convention  he  would  say — I  hoped  after 
so  long  a  course  of  pork  that  our  diet  would  be  changed, 
but  I  find  it  is  pork  still  with  only  a  change  ol  sauce. 

Pass  this  amendment,  and  no  man  can  live  in  the  small 
states  but  under  disparaging  circumstances — they  will 
have  about  as  many  rights  left  in  society  as  the  Helots 
of  Greece.  And  why  is  all  this  done  ?  For  the  purpose 
of  shewing  one  of  the  least  becoming  of  the  weak  pas¬ 
sions  of  man,  resentment ;  you  pursue  a  line  of  conduct 
reprobated  by  yourselves  in  the  time  of  your  predeces¬ 
sors.  He  was  sorry  the  embers  of  party  were  kindled 
even  by  the  very  injudicious  manner  in  which  it  had 
been  supported.  The  best  reflecting  men  see  in  this 
only  the  change  of  men  without  regard  to  measures ;  and 
that  it  had  paved  the  way  for  a  revival  of  the  heats  and 
animosities  which  ought  to  have  been  buried,  but  which 
may  lead  to  a  separation  of  the  union. 


(  155  ) 


The  question  was  called  for  loudly  at  half  past  nine 
and  put — the  yeas  and  nays  being  taken,  were  : 


YEAS. 

Messrs.  Anderson 

Ellery 

Is.  Smith 

Bailey 

Franklin 

Sam.  Smith 

Baldwin 

Jackson 

John  Smith 

Bradley 

Logan 

S  Lone 

Brekenridge 

Maclay 

Taylor 

Brown 

Nicholas 

W  orthington 

Cocke 

Condit 

Potter 

NAYS. 

W  right 

Messrs  Adams 

Olcott 

Tracy 

Butler 

Pickering 

W  ells 

Dayton 

Hillhouse 

^  T"  -  . 

Plumer 

White - 10 

Upon  the  president  declaring  the  question  carried  by 
two  thirds. 

Mr.  1  racy  said  he  denied  that  the  question  was  fairly 
decided  He  took  it  to  be  the  intention  of  the  constitu¬ 
tion  that  there  should  be  two-thirds  of  the  whole  number 
of  senators  elected,  which  would  make  the  number  ne¬ 
cessary  to  its  passage  23. 

It  was  moved  to  adjourn  to  Monday. 

Mr.  Iaylor  said  that  since  it  was  proposed  to  ad¬ 
journ  to  Monday,  when  he  should  be  disqualified  to  sit 
in  that  house  ;  he  hoped  the  senate  would  not  rise  with¬ 
out  deciding  the  question  definitively  on  the  gentleman’s 
objections. 

Mr.  Tracy  said  he  certainly  would  avail  himself  of 
the  principle  to  oppose  its  passage  thro’  the  state  legisla¬ 
tures. 

1  he  president  declared  the  question  had  passed  the 
senate  by  the  majority  required,  and  conformable  to  the 
constitution  and  former  usage. 

Adjourned  at  28  minutes  after  10  at  night. 

THE  AMENDMENT  AS  ADOPTED. 

Resolved  by  the  senate  and  house  of  representatives  of 
he  United  States  of  America  in  congress  assembled, 
Two  thirds  ofboth  houses  concurring,  that  in  lieu  of  the  3d 
Paragraph  oi  the  first  section  of  the  second  article  of  the 
constitution  ol  the  United  States, the  foliowing  be  proposed 
is  an  amendment  to  the  constitution  of  the  United 
states,  which,  when  ratified  by  three  fourths  of  the  le¬ 
gislatures  of  the  several  states,  shall  be  valid  to  all  in¬ 
cuts  and  purposes,  as  part  of  the  said  constitution,  to 
-it :  i 


(  156  ) 


The  electors  shall  meet  in  their  respective  states  and 
vote  bv  ballot  for  president  and  vice  president,  one  of 
whom  at  least,  shall  not  be  an  inhabitant  of  the  same 
state  with  themselves ;  they  shall  name  in  their  ballots, 
the  person  voted  for  as  president,  and  in  distinct  ballots, 
the  person  voted  for  as  vice  president,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  president, 
and  of  all  persons  voted  for  as  vice  president,  and  ol  the 
number  of  voters  for  each,  which  lists  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  seat  of  the  go¬ 
vernment  of  the  United  States,  directed  to  the  presi¬ 
dent  of  the  senate  ;  The  president  of  the  senate  shall, 
in  the  presence  of  the  senate  and  house  of  representa¬ 
tives,  open  all  the  certificates,  and  the  votes  shall  then 
be  counted.  The  person  having  the  greatest  number  ol 
votes  for  president,  shah  be  the  president;  if  such  num¬ 
ber  be  a  majority  of  the  whole  number  of  electors  ap¬ 
pointed  ;  and  if  no  person  have  such  majority,  then  from 
the  persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  president,  tnc 
house  of  representatives  shall  choose  immediately,  by 
ballot,  the  president.  But  in  choosing  the  president, 
the  votes  shall  be  taken  by  states,  the  representation 
from  each  state  having  one  vote  ;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from 
two  thirds  of  the  states,  and  a  majority  of  all  the  states 
shall  be  necessary  to  a  choice.  And  ii  the  house  of 
representatives  shall  not  choose  a  president  whenever 
the  right  of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March,  next  following,  then  the  vice  pre¬ 
sident  shall  act  as  president  as  in  the  case  of  the  death 
or  the  constitutional  disability  of  the  president. 

The  person  having  the  greatest  number  of  votes  as 
vice  president,  shall  be  the  vice  president,  it  such  number 
be  a  majority  of  the  whole  number  of  electors  appoint¬ 
ed,  and  if  no  person  have  a  majority,  then  from  the 
two  highest  numbers  on  the  list,  the  senate  shall  choose 
the  vice  president — a  quorum  for  the  purpose  shall  con¬ 
sist  of  two  thirds  of  the  whole  number  of  senators,  and 
a  majority  of  the  whole  number  shall  be  necessary  to  a 
choice. 

But  no  person  constitutionally  ineligible  to  the  office 
of  president  shall  be  eligible  to  that  of  vice  president  of 
the  United  States. 


(  157  ) 


Messrs.  Anderson 
Bailey 
Baldwin 
Bradley 
Breckinbridge 
Brown 
Cocke 
Condit 
Ellery 
Franklin 
Jackson 


VOTES  IN  THE  SENATE. 

YEAS. 

Logan 


Maclay 
Nicholas 
Potter 
Israel  Smith 
John  Smith 
Samuel  Smith 
Stone 
Taylor 
W  orthington 
Wright  23 


NAYS. 


Messrs.  Adams 
Butler 
Dayton 
Hillhouse 
Olcott 


Pickering 

Plumer 

Tracy 

Wells 

White  10 


The  resolution  was  sent  to  the  house  of  representatives  and  on 
Friday  the  9th  day  of  December,  the  vote  was  taken  upon  it 
and  the  yeas  and  nays  being  called,  were. 

YEAS. 


Messrs.  Nath  Macon  (Spk.) 
William  Alston  jr. 
Nath.  Alexander 
Isaac  Anderson 
John  Archer 
David  Bard 
George  M.  Bedinger 
William  Blacklegde 
John  Boyle 
Robert  Brown 
Joseph  Bryan 
William  Butler 
Geo.  W.  Campbell 
Levi  Casey 
Thomas  Claiborne 
Joseph  Clay 
John  Clopton 
Frederick  Conrad 
J.  Crowningshield 
Richard  Cutts 
John  Dawson 
William  Dickson 
John  B.  Earle 
Peter  Early 
John  W.  Eppes 
William  Findley 
John  Fowler 
James  Gillespie 
Peter  Goodwyn 
Edwin  Gray 


Samuel  L.  Mitchell 
David  Meriwether 
William  M'Creery 
Andrew  M‘Cord 
Matthew  Lyon 
John  B.  C.  Lucas 
Michael  Leib 
Nicholas  R.  Moore, 
Thomas  Moore 
Jeremiah  Morrow 
Anthony  New 
Thomas  Newton,  jr 
Gideon  Olin 
Beriah  Palmer 
John  Patterson 
John  Randolph,  jr, 
Thos.  M.  Randolph 
John  Rea,  (of  Penn.) 
John  Rhea  (of  Tenn  ) 
Jacob  Richards 
Caesar  A.  Rodney 
Erastus  Root 
Thomas  Sammons 
Thomas  Sanford 
Thompson  J.  Skinner 
John  Smilie 
John  Smith  (ofN.Y.) 
Richard  Stanford 
Joseph  Stanton 
John  Stewart 


( 


158  ) 


Andrew  Gregg 
Samuel  Hammond 
John  A.  Hanna 
Josiah  Hasbrouck 
Daniel  Heister 
Joseph  Heister 
James  Holland 
David  Holmes 
JohnG.  Jackson 
Walter  Jones 
William  Kennedy 
Nehemiah  Knight 


David  Thomas 
Philip  R.  Thompson 
Abram  Trigg 
John  Trigg 
Isaac  Van  Horne 
Daniel  C.  Verplank 
Matthew  Walton 
John  Whitehill 
Marmaduke  William 
Richard  Winn 
Joseph  Winston 
Thomas  Wynns — 84 


NAYS. 


Messrs.  Simeon  Baldwin 
Silas  Betton 
Phanuel  Bishop 
John  Campbell 
William  Chamberlin 
Martin  Chittenden 
Clifton  Claggett 
^Matthew  Clay 
Manasseh  Cutler 
Samuel  W.  Dana 
John  Davenport 
John  Dennis 
Thomas  Dwight 
James  Elliott 
L* William  Eustis 
Calvin  Goddard 
Gaylord  Griswold 
Roger  Griswold 
Samuel  Tenney 
Samuel  Thatcher 
George  Tibbits 


Seth  Hastings 
William  Hoge 
David  Hough 
Benjamin  Huger  C- 
Samuel  Hunt 
Joseph  Lewis,  jr. 
Thomas  Lewis 
Henry  W. Livingston 
Thomas  Lowndes 
Nahum  Mitchell 
Thomas  Plater 
Samuel  D.  Purviance 
Ebenezer  Seaver 
John  Cotton  Smith 
William  Stedman 
James  Stephenson 
Samuel  Taggart 
Benjamin  Tallmage 
Joseph  B.  Varnum 
Peleg  Wadsworth 
Lemuel  Williams  42 


THE 


y 


DECLINE  and  FALL 

% 

OF  THE 

ENGLISH  SYSTEM  OF  FINANCE, 


' 


> 


*  \ 


'N 


/ 


■ 


' 

■ 


1 


Uitf 


2 


' 

„  , 


i 


a;  * 


r 


\ 


•  / 

1 


. 


.'  .  • 


4 


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\ 

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•  L 


< 


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rJt 


the 

decline  and  FALL 

of  the 

ENGLISH  SYSTEM  OF  FINANCE. 

^  ^  ^  ^  ^  ^ 

By  THOMAS  PAINE, 

ADTHOR  of  common  sense,  rights  of  MAN, 

AGE  OF  REASON,  &c. 

/  /■-  * 

PHILADELPHIA, 

PRINTED  eyjohn  page,  n°.  6l  mulberry  street 
for  benj.  franklin  bache,  n°.  ,  1 2  high  street.’ 

Y96- 


“  On  the  verge,  nay  even  in  thegulph  of  bankruptcy. 

debates  in  Parliament. 


yy 


N< 


a~j nmV^^’  t‘>e'/  ‘zy>  *3  more  certain  than  death 
and  noth'ng  more  uncertain  than  the  time  of  dyin^ 

cannot  i.ve.lnd  within"  P**  bey°nd  which 
will  die.  We  are  en  ki  °TC  nJom^nt  °f  which  he 

£~E23s^&a&2 

fach  for  infhnce  as  ^fvftem  f  fiany  °the\fubje£l> 
c  as  a  'yitem  of  finance,  exhibits  in 
A 


V 


% 


*  I 


( 


) 


its  progrefs  a  feries  of  lymptoms  indicating  no- 
cay,  its  final  diffolution  is  certain,  and  the  period  of 
it  can  be  calculated  from  the  fymptoms  it  exhibits. 

Thofe  who  have  hitherto  written  on  the  Englifh 
fyflem  of  finance  (the  funding  fyften)  have  been  . 
uniformly  impreffed  with  the  idea  of  its  ctow  mail 
happening  fonve  time  or  other .  ihey  took,  however, 

no  data  for  that  opinion,  but  expreffed  it  prediaive- 
ly,  or  merely  as  opinion,  from  a  convi&ion  that  the 
perpetual  duration  of  fuch  a  fyflem  was  a  natura 
impoflibility.  It  is  in  this  manner  that  Doclor  a  rice 
has  fpoken  of  it  *,  and  Smith  in  his  Wealth  of  Na¬ 
tions  has  fpoken  in  the  fame  manner  \  that  is,  mere  y 
as  opinion  without  dat*.  “The  progrefs,  fays  Smith, 
of  the  enormous  debts,  wnich  at  preient  oppreis, 
will  in  the  long  run  mojl  probably  ruin ,  ail  the  great 
nations  of  Europe,  (he  fhould  have  faid  governments) 
has  been  pretty  uniform.”  But  this  generaT  manner 
of  fpeaking,  though  if -might  make  fome  impreffion, 

carried  with  it  no  conviction. 

It  is  not  my  intention  to  predift  any  thing  *,  out  I 
will  (how  from  data  already  known,  from  fymptoms 
and  fads,  which  the  Englifh'  funding  fyflem  has  al¬ 
ready  exhibited  publicly,  that  it  will  not  continue  to 
the  end  of  Mr.  Pitt’s  life,  fuppofing  him  to  live  the 
ufual  age  of  a  man.  How  much  fooner.  it  may  tail,| 

I  leave  to  others  to  predict.  •  '$ 

Let  financiers  diver fify  fyftems  of  crecut  as  they  , 
mb  L  ic  noverihelefs  true,  that  every  fyflem  oi  ere- 


will,  it  is  neverfcheiefs  true,  that  every  fyflem  01  cre¬ 
dit  is  a  fyflem  of  paper  money.  Two  experiment^ 
have  already  been  had  upon  paper  money  *,  ti^  one  1 4-1 
America  the  other  iu  France.  In  both  thofe  cafes  the 
whole  capital  was  emitted,  and  that  whole  capital, 
which  in  America  was  called  continental  money,  an 
in.  France  affignats,  appeared  in  circulation  ;*  the  con- 
fcqyiencc  of  which  was,  that  the  Quantity  becarc- 


A 


_ _ 


(•  3  )  .  , 

enormous,  and  fo  difprrportioned  to  the  quantity  of 
population,  and  to  the  quantity  of  objects  upon  which 
it  could  be  employed,  that  the  market,  if  I  may  fo 
exprefs  it,  was  glutted  with  it,  and  the  value  of  it 
fell.  Between  five  and  fix  years  determined  the  fate 
of  thole  experiments.  The  fame  fate  would  have  - 
Happened  to  gold  and  filver,  could  gold  and  filver 
have  been  ifiued  in  the  fame  abundant  manner  as 
paper  had  been,  and  confined  within  the  coun¬ 
try  as  paper  money  always  is,  by  having  no  circu¬ 
lation  out  of  it;  or,  to  fpeak  on  a  large/ fcale,  the 
fame  thing  would  happen  in  the  world,  could  the- 
world  be  glutted  with  gold  and  filver,  as  America 
and  Trance  has  been  with  paper. 

1  he  Englifli  fyffem  differs  from  that  of  America 
and  France  in  this  one  particular,  that  its  capital  is 
kept  out  of  fight ;  that  is,  it  does  not  appear  in  cir-  ' 
culation.  Were  the  whole  capital  of  the  national 
debt,  which  at  the  time  I  write  this  is  almoff  four 
nundred  million  pounds  fcerling,  to  be  emitted  in  a£~ 
fignats  or  bills,  and  that-  whole  quantity  put  info 
circulation,  as  was  done  in  America  and  in  France,  • 
thofc  Englifli  afiignats,  or  bills,  would  fink  in  value 
as  thofe  of  America  and  France  have  done  ;  and  that 
in  a  greater  degree,  becaufe  the  quantity  of  them  1 
would  be  more  difproportioned  to  the  quantity  of  po¬ 
pulation  in  England,  than  was  the  cafe,  in  either  of 
the  other  two  countries.  A  nominal  pound  (telling 
in  fiich  bills  would  not  .be  worth  one  penny. 

,  But  th-ough  the  Englifli  fyftem,  by  thus  keeping 
tnc  capital  out  of  fight,  is  preferved  from  hafiy  de- 
ftruciion,  as  in  the  cafe  of  America  and  France,  'it 
neverthelefs  approaches  the  fame  fate,  and  will  ar-  ' 
rive  at  it  with  thefame  certainty,  though  .by  a  flower 
progrefs.  The  difference  is  altogether  in  the  degree 
oi  fpeed  by  which  the  two  fyftems  approach  their 


/• 


(  4  ) 

fate,  which,  to  fpeal:  in  round  numbers,  is  as  twen¬ 
ty  is  to  one  ;  that  is,  the  Engiifh  fyftem,  that  of  fund¬ 
ing  the  capital  inftead  of  iffuing  it,  contained  within 
itfeif  a  capacity  of  enduring  twenty  times  longer 
than  the  fyftems  adopted  by  America  and  France  ; 
and  at  the  end  oi  that  time  it  would  arrive  at  the  fame 
common  grave,  the  Potter’s  field,  of  paper  money. 

The  datum  I  take  for  this  proportion  of  twenty 
to  one,  is  the  difference  between  a  capital  and  the 
intereft  at  five  per  cent.  Twenty  times  the  intereft 
is  equal  to  the  capital.  1  he  accumulation  of  paper 
money  in  England  is  in  proportion  to'the  accumula¬ 
tion  of  the  intereft  upon  every  new  loan ;  and  there¬ 
fore  the  progrefs  to  difiblution  is  twenty  times  flow¬ 
er  than  if  the  capital  were  to  be  emitted  and  put  into 
circulation  immediately.  Every  twenty  years  in  the 
Engiifh  fyftem  is  equal  to  one  year  in  the  French  and 
American  ‘fyftems. 

Having  thus  ftated  the  duration  of  the  two  fyf¬ 
tems,  that  of  funding  upon  intereft,  and  that  of  emit¬ 
ting  the  whole  capital  without  funding,  to  be  as 
twenty  to  one,  I  come  to  examine  the  fymptoms  of 
decay  approaching  to  difiblution,  that  the  Engiifh 
fyftem  has  already  exhibited*,  and  to  compare  them 
with  fimilar  fymptoms  in  the  French  and  American 
fyftems. 

I  he  Engiifh  funding  fyftem  began  one  hundred 
years  ago  ;  in  which  time  there  has  been  fix  wars  in¬ 
cluding  the  war  that  ended  in  1697. 

1.  The  war  that  ended,  as  I  have  juft  faid,  in  1697. 

2.  The  war  that  began  in  1702. 

3-  The  war  that  began  in  1739. 

4.  The  war  that  began  in  1756. 

5.  The  American  war  that  began  Tn  1775. 

6.  The  prefent  war  that  began  in  1 793. 


(  5 


I 


))' 

The  national  debt,  at  the  conclufion  of  the  war,- 
v/hich  ended  in  1697,  was  twenty  one  millions  and 
an  half.  (See  Smith’s  Wealth  of  Nations,  chapter 
on  Public  Debts.)  We  now  fee  it  approaching  fait 
to  four  hundred  millions.  If  between  thofe  two 
extremes  of  twenty  one  millions  and  four  hundred 
millions,  embracing  the  feveral  expenccs  of  all  the 
including  wars,  there  exifts  feme  common  ratio  that 
will  afeertain  arithmetically  the  amount  of  the  debt 
at  the  end  of  each  war,  as  certainly  as  the  fadf  is 
now  known  to  be,  that  ratio  will  in  like  manner  de¬ 
termine  what  the  amount  of  the  debt  will  be  in  ail 
future  wars,  and  will  afeertain  the  period  within 

I  which  the  funding  fyftem  will  expire  in  a  bankrupt¬ 
cy  of  the  government ;  for  the  ratio  I  allude  to  is 
the  ratio  which  the  nature  of  the  thing  has  eftablifh- 
ed  for  itfelf. 

Hitherto  no  idea  has  been  entertained  that  anv 
fuch  ratio  exifted,  or  could  exift,  that  could  deter¬ 
mine  a  problem  of  this  kind,  that  is,  that  could  af¬ 
eertain,  without  having  any  knowledge  of  the  fadr, 
what  the  expence  of  any  former  v/ar  had  been,  or 
what  the  expcnce  of  any  future  war  would  be  ;  but 
it  is  neverthelefs  true  that  fuch  a  ratio  does  exift,  as 
I  fhall  {hew,  and  alfo  the  mode  of  applying  it. 

The  ratio  I  allude  to  is  not  in  arithmetical  pro- 
greffion,  like  the  numbers 

4>  A,  7>  8,  9, 

nor  yet  in  geometrical  progreftion,  like  the  numbers 

2>  4,  8,  1 6,  32,  64,  128,  256; 

but  is  in  the  feries  of  one  half  upon  each  preceding- 
number  ;  like  the  numbers 

8,  12,  18,  27,  40,  60,  90,  135. 

Any  perfon  can  perceive  that  the  fecond  number 


1 


/ 


I 


(  6  ) 

12)  is  produced  by  the  preceding  number  8,  and 
j  half  8  :  and  that  the  third  number  1 8  is  in  like  man¬ 
ner  produced  by  the  preceding  number  1 2  and  half 
1 2)  and  fo  on  for  the  reft.  They  can  alfo  fee  how 
rapidly  the  fums  increafe  as  the  ratio  proceeds.  The. 
difference  betwen  the  two  firit  numbers  is  but  a,  but 

t  j  j 

the  difference  between  the  two  laft  is  45  \  and  from 
thence  they  may  fee  with  what  im'menfe  rapidity  the  . 
national  debt  has  encrcafecl,  and  will  continue, to  ■■ 

*  encreafe,  till  it  exceeds  the  ordinary  powers  of  cal¬ 
culation,  and  lofes  itfclf  in  cyphers. 

I  come  now  to  apply  the  ratio  as  a  rule  to  deter¬ 
mine  all  the  cafes. 

I  begin  with  the  war  that  ended  011097,  which 
was  the  war  in  which  the  funding  fyftem  began. 
The  expence  of  that  war  was  twenty-one  millions 
and  an  half.  In  order  to  afcertain  the  exnence  of 
the  next  war,  I  add  to  twenty-one  millions  and  an 
half,  the  half  thereof  (ten  millions  and  three  quar¬ 
ters)  which  makes  thirty  one  millions  and  three 
quarters  for  the  expehce  of  .that  war.  This  thirty- 
one  millions  and  three  quarters,  added  to  the  former 
debt  of  twenty-one  millions  and  an  half,  carries  the 
national  debt  to  52  millions  and  three  quarters. 
Smith,  in  his  chapter  on  Public  Debts,  fays,  the 
national  debt  was  at  this  time  53  millions. 

I  proceed  to  afcertain  the  'expence  of  the  next  N* 
war,  that  of  1739,  by  adding,  as  in  the  former 
cafe,  one  half  to  the  expellee  of  the  preceding  war.  , 
The  expcnce  of  the  preceding  war  wgs  thirty-one 
millions  and  three  Quarters  ;  for 'the  fake  of  even' 
numbers,  fay  32  millions,  the  half  of  which  (16) 
makes  forty  eight  millions  for- 'the;  expence  of  that'1 
war.  ,  .  ,V  .  #  1  -  .  ;;  : 

I  proceed  to  ’afcertain  the  expence  of  the  war  of 
1756,  by  adding,  according  to’ the  ratio,  one  Half  to 


t 

I 


V 


.the  expence  cf  the  preceding  war.  The  expence 
of  the  preceding  war  was  taken  at  48  millions, 
the  half  of  which  (24)  makes  72  millions  for  the  ex¬ 
pence  of  that  war.  Smith  (chapter  on  Public  Debts) 
fays,  the  expence  of  the  war  of  1756  was  72  milli¬ 
ons  and  a  quarter. 

I  proceed  to  afeertain  the  expence  of  the  Ameri¬ 
can  war  of  1775,  by  adding,  as  in  the  former  cafes, 
one  half  to  the  expence  of  the  preceding,  war.  The 
expence  of  the  preceding  war  was  72  millions,  the 
half  of  which  (36)  makes  108  millions  for  the  ex¬ 
pence  of  that  war.  In  the  laft  edition  of  Smith, 
(chapter  on  Public  Debts)  he  fays,  the  expence  of 
the  American  war  was  more  than  an  hundred  millions. 

I  come  now  to  afeertain  the  expence  of  the  pre¬ 
fent  war,  fuppofmg  it  to  continue  as  long  as  former 
wars  have  done,  and  the  funding  fyftem  net  to 
break  up  before  that  period.  The  expence  of  the- 
preceding  war  was  108  millions,  the  half  of  which 
(54)  makes  one  hundred  and  fixty-two  millions  for 
the  expence  of  the  prefent  war.  It  gives  fymptoms 
of  going  beyond  this  fum,  fuppofmg  the  funding 
fyftem  not  to  break  up  ;  for  the  loans  of  the. laft 
year  and  of  the  prefent  year,  are  twenty-two  milli¬ 
ons  each ;  which  exceeds  the  ratio  compared  with 
the  leans  of  the  preceding  war.  It  will  not  be  from 
the  inability  of  procuring  loans  that  the  fyftem  will 
*  break  up.  On  the  contrary,  it  is  the  facility  with. 
■  which  loans  can  be  procured,  that  haftens  that  event. 
The  loans  are  altogether  paper  tranfa&ions,  and  it 
is  the  excels  of  them  that  brings  on,  with  accele¬ 
rating  fpecd,  that  pr  ogre  hive  depreciation  oi  fund¬ 
ed  paper  money  that  will  diiToivethe  funding  fyftem. 

I  proceed  to  afeertain  the  expence  of  future 
wars,  and  I  do  this  merely  to  fhew  the  impoftibiiity 


I 


,  / 


/ 


t  3  ) 

of  the  continuance  of  the  funding  fyftem,  and  the 
certainty  of  its  dii'iblution. 


war 


T.  he  expence  of  the  next  war,  after  the  prefent 
according  to  the  ratio  that  has  ascertained 


the  preceding  cafes,  will  be 
Expence  o!  tne  lecondwar 
of  the  third  war 
of  the  fourth  war 
of  the  fifth  war 


243  millions 
364  millions 
546  millions 
819  millions 
1228  millions 


, .  .  4  3200  millions; 

which,  at  only  4  per  cent,  will  require  taxes  to  the 
nominal  amount  of  one  hundred  twenty-eight  milli- 
©ns  to  pay  the  annual  intereft,  befides  the  intereft 
of  the  preient  debt,  and  the  expence  of  government, 
which  are  not  included  in  this  account.  Is  there  a 

man  fo  mad,  fo  ftupid,  as  to  fuppofe  this  fyftem  can 
continue  ?  ' 


When  I  firft  conceived  the  idea  of  leeking  for  fome 
common  ratio  that  Ihould  apply  as  a  rule  of  meafure- 
menL  to  <JI  the  calcs  of  the  funding  fyftem,  fo  far 
as  to  afeertain  the  feveral  ftages  of  fts  approach  to 
diflolution,  I  had  no  expectation  that  any  ratio  could 
be  found  that  would  apply  with  fo  much  exactnefs 
as  this  does.  I  was  led  to  the  idea  merely  by  ob- 
fervmg  that  the  funding  fyftem  was  a  thing  in  con¬ 
tinual  progreffion,  and  that  whatever  was  in  a 
.ftaie  of  progreffion,  might  be  fuppofed  to  admit  of, 
a*,  leaft,  fome  general  ratio  of  meafurement  that 
would  apply  without  any  very  great  variation.  But 
who  could  have  fuppofed  that  falling  fyftems,  or 
falling  opinions,  admitted  of  a  ratio,  apparently  as 
true  as  the  defeent  of  falling  bodies  ?  I  have  not 
>nade  the  ratio,^  any  more  than  Newton  made  the 
ratio  of  gravitation.  I  have  only  aifeovered  it,  and 
explained  the  mode  of  applying  it. 


I 


\ 


l  (  9  ) 

To  (hew  at  one  view  the  rapid  progreflion  of  the 
funding  fyftem  to  deftruaion,  and  to  expofe  the 
folly  of  thole  who  blindly  believe  in  its  continuance, 
or  who  artfully  endeavour  to  impofe  that  belief  up¬ 
on  others,  I  exhibit  in  the  annexed  table,  the  ex¬ 
pence  of  each  of  the  fix  wars  fince  the  funding  fyf- 
teni  began,  as  afeertained  by  the  ratio,  and  the  ex- 

police  of  fix  wars  yet  to  come,  afeertained  by  the 
fame  ratio. 


Firfl  fix  wars. 

1  - 

2  - 

3  " 

4  - 

5  * 

6  « 

Total  -  -  444  millions 


Second  fix  wars. 

-  243  millions 

-  -  364  millions 

-  -  546  millions 

-  -  819  millions 

-  -  1228  millions 

-  1842  millions 

lotal  -  5042  millions 


21  millions  1 
33  millions  2 

-  48  millions  3 
72  millions  *  4 

-  108  millions  5 

-  162  millions  6 


1  —iiiMiiiii  f  I  1  ■ 1  *  *  '  J  *  :i  1  • 

*  The  adhial  expence orf  the  war  of  i739,  did  not  come  up.  to 
the  lum  alcertained  by  the  ratio  But  as  that  which  is  the  na¬ 
tural  difpofnion  of  a  thing,  as  it  is  the  natural  difpofition  of  a 
ftream  of  water  to  defeend,  will,  if  impeded  in  its  courfe,  o* 
vercome  by  a  new  effort  what  it  had  loft  by  that  impediment,  fo 
it  was  with  ref|<ett  to  this  war  and  the  next  (1756)  taken  col¬ 
lectively  ;  for  the  expence  of  the  war  1756,  rettored  the  equili¬ 
brium  of  the  ratio,  as  fully  as  it  it  had  not  been  impeded.  A 
circumftance  that  ferves  to  prove  the  truth  of  the  ratio  more  ful¬ 
ly  than  if  the  interruption  had  not  taken  place.  The  war  of 
1739,  was  languid;  the  efforts  were  below  the  value  of  money 
at  that  time;  tor  the  ratio  is  the  mealure  of  the  depreciation  of 
money  in  confequcnce  of  the  funding  fyftem;  or  what  comes  to 
the  fame  end,  it  is  tUe  meafure  of  the  encreafe  of  paper  Every 
additional  quantity  of  if,  whether  in  bank  notes  or  otherwife, 
dimiriilhes  the  real ,  ttough  not  the  nominal  value  of  the  form*' 
quantity. 

B 


/ 


4 


(  to  y 

* 

Thofe  who  are  acquainted  with  the  power  with 
which  even  a  imall  ratio*  a6Hng  in  progreflion, 
multiplies  in  a  long  feries,  will  fee  nothing  to  won¬ 
der  at  in  this  table.  Thofe  who  are  not  acquainted 
with  that  tubjea,  and  not  {snowing  what  elfe  to 
fay,  may  be  inclined  to  deny  it.  But  it  is  not  their 
opinion  one  way,  nor  mine  the  other,  that  can  in¬ 
fluence  the  event.  The  table  exhibits  the  natural 
march  of  the  funding  fyftem  to  its  irredeemable 
diffolution. — Suppofing  the  prefent  government  ot 
England  to  continue  and  to  go  on,  as  it  has  gom 
on  fmce  the  funding  fyftem  began,  I  would  not 
give  twenty  {hillings  for  one  hundied  pounds  in 
the  funds  to  be  paid  twenty  years  hence.  I  do  not 
fpeak  this  predidtively  \  I  produce  the  data  up¬ 
on  which  that  belief  is  founded ;  and  which  da¬ 
ta  it  is  every  body’s  intereft  to  know,  who  have 
any  thing  to  do  with  the  funds,  or  who  are  going 
to  bequeath  property  . to  their  defendants  to  be  paid 
at  a"  future  day. 

Perhaps  it  may  be.afked,  that  as  governments  or 
minifters  proceeded  by  no  ratio  in  making  loans  or 
incurring  debts,  and  as  nobody  in  tended  any  ratio,  o* 
thought  of  any,  how  does  it  happen  mat  is 

one  ?  I  anfwer  that  the  ratio  is  founded  in  necdliiy*, 
and  1  now  go  to  explain  what  tnat  neceffity  is. 

It  will  always  happen  that  the  price  of  labour  or 
of  the  produce  ot  labour,  be  that  produce  vhat,  if 
may,  will  be  in  proportion  to  the  quantity  of  mo¬ 
ney  in  a  country,  admitting  things  to  take  their  na¬ 
tural  ccurfe..  Before  the  invention  of  the  funding 
fyftem,  there  was  no  other  money  than  gold  and 
fiver ;  and  as  nature  gives  out  thofe  metals  with  a 
fparing  hand  and  in  regular  annual  quantities  ~roip 
the  mines,  the  feveral  prices  of  things  were  propor¬ 
tioned  to  the  quantity  of  money  at  that  time,  and 


(  »  ) 


tb  nearly  ftationary  as  to  vary  but  little  in  any  nity 
or  fixty  years  of  that  period. 

When  the  funding  fyftem  began,  a  fubflitute  for 
gold  and  filver  began  alfo.  That  fubftitute  was  pa¬ 
per;  and  the  quantity  of  it  encreafed  as  the  quan¬ 
tity  of  intereft  encreafed  upon  accumulated  leans. 
This  appearance  of  a  new  and  additional  fpecies 
of  money  in  the  nation  foon  began  to  break 
the  relative  value,  which  money  and  the  things 
it  will  purchafe,  bore  to  each  other  before.  Eve- . 
ry  thing  rofe  in  price,  but  the  rife  at  firft  was 
iittle  and  flow,  like  the  difference  in  units  between 
the  two  firft  numbers  8  and  1 2,  compared  with 
the  two  laft  numbers  90  and  135  in  the  table.  It  was 
however  fufheient  to  make  itfelf  confiderably  felt  in 
a  large  tranfadbicn.  V*'  hen  therefore  government, 
by  engaging  in  a  new  war,  required  a  new  lean,  it 
was  obliged  to  make  a  higher  loan  than  the  for¬ 
mer  loan  to  balance  the  encreafed  price  to  which 
things  had  rifen;  and  as  that  new  loan  encreafed  the 
quantity  of  paper  in  proportion  to  the  new*  quantity 
of  intereft,  it  carried  the  price  of  things  ftill  higher 
than  before.  The  next  loan  was  again  higher  to  bal¬ 
ance  that  further  encreafed  price  ;  and  all  this  in  the 
fame  manner,  though  not  in  the  fame  degree,  that 
every  new  emiflion  of  continental  money  in  Ameri¬ 
ca,  or  of  affignats  in  France,  were  greater  than  the 
preceding  emiflion  to  make  head  againft  the 
advance  of  prices,  till  the  combat  could  be  main¬ 
tained  no  longer.  Herein  is  founded  the  necef- 
f:ty,  of  which  I  have  juft  fpoken.  That  neceflity 
proceeds  with  accelerating  velocity,  and  the  ratio  l 
have  laid  down  is  the.  meafure  of  that  acceleration  ; 
or,  to  fpeak  the  technical  language  of  the  fubjedf, 
it  is  the  me  a  lure  of  the  encreafing  depreciation  of 
funded  paper  money,  which  it  is  impoflible  to  pre¬ 
vent,  while  the  quantity  of  that  money  and  of  bank 


1 


(  *2  ) 

notes  continues  to  multiply.  What  elfe  but  this  can 
account  for  the  difference  between  one  war  cofting 
21  millions  and  another  war  cofting  160  millions  ? 

The  difference  cannot  be  accounted  for  on  the 
fcore  of  extraordinary  efforts  or  extraordinary  at- 
chievements.  The  war  that  coft  21  millions  was 
the  war  of  the  confederates,  hiftorically  called  the 
grand  alliance,  confiding  of  England,  Auftria  and 
Holland,  in  the  time  of  William  the  third,  againft 
Louis  the  fourteenth,  and  in  which  the  confede¬ 
rates  were  victorious.  The  prelent  is  a  war  of  a 
much  greater  confederacy  ;  a  confederacy  of  Eng¬ 
land,  Auftria,  Pruffia,  the  German  Empire,  Spain, 
Holland,  Naples  and  Sardinia,  eight  powers  againft 
the  French  Republic  fingly,  and  the  Republic  has 
beaten  the  whole  confederacy. — But  to  return  to 
my  fubjech 

It  is  faid  in  England  that  the  value  of  paper  keeps 
equal  with  the  value  of  gold  and  filver.  But  the 
cafe  is  not  rightly  ftated  ;  for  the  fact  is,  that  the 
paper  has  pulled  down  the  value  of  gold  and  fil¬ 
ver  to  a  level  with  itfelf.  Gold  and  filver  will  not 
purchafe  fo  much  of  any  purchafeable  article  at  this 
day  as  if  no  paper  had  appeared,  nor  fo  much  as  it 
will  in  any  country  in  Europe  where  there  is  no 
paper.  How  long  this  hanging  together  of  money 
and  paper  will  continue,  makes  a  new  cafe;  becaufe 
it  daily  expofes  the  fyftem  to  Bidden  death,  indepen¬ 
dant  of  the  natural  death  it  would  otherwife  fufFer. 

I  confider  the  funding  fyftem  as  being  now  ad¬ 
vanced  into  the  laft  twenty  years  of  its  exiftence. 
The  fingle  circumftance,  were  there  no  other,  that 
a  war  fhould  now  coft  nominally  one  hundred 
and  fixty  millions,  which  when  the  fyftem  began 
coft  but  twenty-one  millions,  or  that  the  lean  for 
one  year  only  (including  the  loan  to  the  Emperor) 


\ 


I 


(  *3  ) 

thould  now  be  nominally  greater  than  the  whole  ex¬ 
pence  of  that  war,  {hews  the  ftate  of  depreciation 
to  which  the  funding  fyftem  has  arrived.  Its  de¬ 
preciation  is  in  the  proportion  of  eight  for  one,  com¬ 
pared  with  the  value  of  its  money  when  the  fyftem 
began  ;  which  is  the  ftate  the  French  affignats  ftood 
in  a  year  ago  (March  1795)  compared  with  gold 
and  diver.  It  is  therefore  that  I  fay,  that  the  Eng- 
lifh  funding  fyftem  has  entered  into  the  laft  twenty- 
years  of  its  exiftence,  comparing  each  twenty  years 
oi  the  Englifh  fyftem,  with  every  {ingle  year  of  the 
American  and  French  fyftems,  as  before  ftated. 

Again,  fuppofing  the  prefent  war  to  clofe  as 
former  wars  have  done,  and  without  producing 
'  cither  revolution  or  reform  in  England,  another 
war,  at  leaft,  muft  be  looked  for  in  the  ipace  of  the 
twenty  years  I  allude  to ;  for  it  has  never  yet  hap¬ 
pened  that  twenty  years  have  paffed  off  without  a 
war,  and  that  more  efpecially  fines  the  Englilh  go¬ 
vernment  has  dabbled  in  German  politics,  and  (hewn 
a  difpofition  to  infult  the  world,  and  the  world  of 
commerce,  with  her  navy.  That  next  war  will 
carry  the  national  debt  to  very  nearly  feven  hundred 
millions,  the  mtereft  of  which  at  four  per  cent,  will 
be  twenty-eight  millions,  befides  the  taxes  for  the 
(then)  expences  of  government,  which  will  encreafe 
in  the  fame  proportion,  and  which  will  carry  the 
taxes  to  at  leaft  forty  millions  ;  and  if  another  war 
only  begin,  it  will  quickly  carry  them  to  above  fifty; 
for  it  is  in  the  laft  twenty  years  of  the  funding  fyftem, 
as  in  the  laft  year  of  the  American  and  French  fyf¬ 
tems  without  funding,  that  all  the  great  {hocks 
begin  to  operate. 

I  have  juft  mentioned  that  paper,  in  England, 
has  pulled  down  the  value  of  gold  and  filver  to  a 
h\el  with  itfelf ;  and  that  this  pulling  down  of  gold 


/ 


r 


(  14  j 

ana  fiiver  money  has  created  the  Appearance  of  pa¬ 
per  money  keeping  up.  The  fame  thing  and  the 
fame  miftake  took  place  in  America  and  in  France* 
and  continued  for  a  confidence  time  after  the  com¬ 
mencement  of  their  fyftem  oi  paper  »  and  the 
a£f  ual  depreciation  of  money  was  hidden  under  that 

miftake.  \ 

It  was  faid  in  America,  at  that  time,  that  every 
thing  was  becoming  dear  ,*  but  gold  and  fiiver  could 
then5 buy  thofe  dear  articles  no  cheaper  than  paper 
could ;  and  therefore  it  was  not  called  depreciation. 
The  idea  of  dearnefs  eftablilhed  itfelf  for  the  idea  of 
depreciation.  The  fame  was  the  cafe  in  France. 
Though  every  thing  rofe  in  price  foon  after  affig- 
nats  appeared,  yet  thofe  dear  articles  could  be  pur- 
chafed  no  cheaper  with  gold,  and  fiiver  than  with 
paper,  and  it  was  only  faid  that  things  were  dear . 
The  fame  is  ft  ill  the  language  in  England.  They 
call  it  ' dearnefs .  But  they  will  foon  find  that  it  is 
an  actual  depreciation,  and  that  this  depreciation  is 
the  effect  of  the  funding  fyftem  *,  which  by  crowd¬ 
ing  fuch  a  continually  encreafing  mafs  of  paper  into 
circulation,  carries  down  the  value  of  gold  and  fiiver 
with  it.  But  gold  and  fiiver  will,  in  the  long  run, 
revolt  againft  depreciation,  and  feparate  from  tne 
value  of  paper  ;  for  the  progrefs  of  all  fuch  fyftems 
appears  to  be,  that  the  paper  will  take_  the'  com¬ 
mand  in  the  beginning,  and  gold  and  fiiver  m  the 

But  this  fuccefiion  in  the  command  of  geld  and 
fiiver  over  paper,  makes  a  crifis  far  moie  eventful 
to  the  funding  fyftem  than  to  any  other  fykem  up¬ 
on  which  paper  can  be  ilTued  ;  for,  ftridtly  tpeakmg, 
it  is  not  a  crifis  of  danger,  but  a  fymptom  or  deam. 
It  is  a  death  ftroke  to  the  funding  fyftem.  It  is  a 
revolution  in  the  whole  of  its  affairs. 


« 


i  (  '•  ’5  ) 

If  paper  be  iiTued  without  being  funded  upop 
intereft,  emiflions  of  it  can  be  continued  after  the 
value  of  it  feparates  from  gold  and  fiber,  as  we 
have  feen  in  the  two  cafes  of  America  and  Francco 
But  the  funding  fyftem  refts  altogether  upon  the 
value  of  paper  being  equal  to  gold  and  fiber  ;  which 
will  be  aslongasthepaper  can  continue  carrying  down 
the  value  of  gold  and  fiber  to  the  fame  level  to 
which  itfelf  defcends,  and  no  longer.  But  even  in 
this  ftate,  that  of  defcending  equally  together,  the 
minifter,  whoever  he  may  be,  will  find  himfeir 
befet  with  accumulating  difficulties ;  becaufe  the 
loans  and  taxes  voted  for  the  fervice  of  each  enfu- 
ing  year  will  wither  in  his  hands  before  the  year  ex¬ 
pires,  or  before  they  can  be  applied.  This  will 
force  him  to  have  recourfe  to  emiflions  of  what  is 
called  exchequer  and  navy  bills,  which  by  Bill  en« 
creafing  the  mafs  of  paper  in  circulation,  will  drive 
on  the  depreciation  ftill  more  rapidlyj 

It  ought  to  be  known  that  taxes  in  England  are 
not  paid  in  gold  and  fiber,  but  in  paper  (bank  notes }- 
Every  perfon  who  pays  any  confiderable  quantitv 
of  taxes,  fuch  as  malfters,  brewers,  diflillers  (lap- 
peal  for  the  truth  of  it  to  any  of  the  collegers  of  ex- 
cife  in  England,  or  to  Mr.  Whitbread),  iknows  this 
to  be  the  cafe.  There  is  not  gold  and  fiber  enough 
in  the  nation  to  pay  the  taxes  in  coin,  as  I  {hall  (hew 5 
and  cor.fequently  there  is  not  money  enough  in  the 
bank  to  pay  the  notes.  The  interefl  cf  the  national 
funded  debt  is  paid  at  the  bank  in  the  fame  kind 
of  paper  in  which  the  taxes  are  coliedfed.  When 
people  find,  as  they  will  find,  a  referv-ednefs  among 
each  other  in  giving  gold  and  fiber  for  bank  notes 

the  leaft  perference  for  the  former  ever  the  lat¬ 
ter,  they  will  go  for  payment  to  the  bank  where 
they  have  a  right  to  go.  They  will  do  this  a&  a  mca- 


/ 


fc 


:  (  it  ) 

/ 

fureot  prudence,  each  one  forhimfelf,  and  the  truth 
or  delufion  of  the  funding  fyftern  will  then  be  proved. 

I  have  faid  in  the  foregoing  paragraph,  that  there 
is  not  gold  and  filver  enough  in  the  nation  to  pay  the 
taxes  in  coin,  and  confequently  that  there  cannot  be 
enough  in  the  bank  to  pay  the  notes.  As  I  do  not 
chufe  to  reft  any  thing  upon  aftertion,  I  appeal  for 
the  truth  of  this  to  the  publications  of  Mr.  Eden 
(now  called  Lord  Auckland),  and  George  Chalmers, 
fecretary  to  the  board  of  trade  and  plantation,  of 
which  Jenkinfon  (now  called  Lord  Hawkfbury)  is 
prefident.  (Thefe  fort  of  folks  change  their  names 
fo  often,  that  it  is  as  difficult  to  know  them  as  it  is  to 
know  a  thief.)  Chalmers  gives  the  quantity  of  gold 
and  filver  coin  from  the  returns  of  coinage  at  the 
mint ;  and  after  deducting  for  the  light  gold  re¬ 
coined,  fays,  that  the  amount  of  gold  and  filver  coin 
is  about  twenty  millions .  He  had  better  not  have 
proved  this,  efpecially  if  he  had  reflected  that  public 
credit  is  fufpicion  afieep.  The  quantity  is  much  too 
little. 

Of  this  twenty  millions  (which  is  not  a  fourth 
part  of  the  quantity  of  gold  and  lilver  there  is  in 
France,  as  is  {hewn  in  Mr.  Necker’s  treatife  on  the 
adminiftration  of  the  finances)  three  millions  at  leaft 
muft  be  fuppofed  to  be  in  Ireland,  fome  in  Scotland, 
and  in  the  Weft-Indies,  Newfoundland,  &c.  The 
quantity  therefore  in  England  cannot  be  more  than 
fixteen  millions,  which  is  four  millions  lefs  than  the 
amount  of  the  taxes.  But  admitting  there  to  be  fix¬ 
teen  millions,  not  more  than  a  fourth  part  thereof 
(four  millions)  can  be  in  London,  when  it  is  confi- 
dered  that  every  city,  town,  village,  and  farm-houfe 
in  the  nation  muft  have  a  part  of  it,  and  that  all  the 
great  manufactories,  which  moft  require  cafh,  are 
out  of  London.  Of  this  four  millions  in  London, 

\  I 


/ 


/ 


% 


i  vj  ) 

every  banker,  merchant,  tradefman,  in  fhort  every 
individual  muft  have  fome.  He  muft  be  a  poor 
fhop-keeper  indeed,  who  has  not  a  few  guineas  in 
his  till.  The  quantity  ot  cadi  therefore  in  the  bank 
can  never,  on  the  evidence  of  circumftances,  be  fo 
much  as  two  millions  ;  molt  probably  not  more  than 
one  million  ;  and  on  this  llender  twig,  always  liable 
to  be  broken,  hangs  the  whole  funding  fyftem  of 
tour  hundred  millions,  betides  many  millions  in 
bank  notes.  The  fum  in  the  bank  is  not  fuffici- 
ent  to  pay  one  fourth  of  only  one  year’s  intereft  of 
tne  national  debt,  were  the  creditors  to  demand 
payment  in  cadi,  or  to  demand  cadi  for  the  bank 
notes  in  which  the  intereft:  is  paid.  A  circum- 
ftance  always  liable  to  happen. 

One  of  the  -amufements  that  has  kept  up  the 
farce  of  the  funding  fyftem  is,  that  the  intereft  is 
regularly  paid.  But  as  the  intereft  is  always  paid 
in  bank  notes,  and  as  bank  notes  can  always  be 
coined  for  the  purpofe,  this  mode  of  payment  proves 
nothing.  The  point  of  proof  is,  can  the  bank  give 
cafh  for  the  bank  notes  in  which  the  intereft  is 
paid  ?  If  it  cannot,  and  it  is  evident  it  cannot,  fome 
millions  of  bank  notes  muft  go  without  payment, 
and  thofe  holders  of  bank  notes  who  apply  laft  will 
be  word:  off.  When  the  prefen t  quantity  of  cadi  in 
the  bank  be  paid  away,  it  is  next  to  impoffible  tt> 
fee  how  any  new  quantity  is  to  arrive.  None  will 
arrive  from  taxes,  for  the  taxes  will  all  be  paid  in 
bank  notes  }  and  fhould  the  government  refufe  bank 
notes  in  payment  of  taxes,  the  credit  of  bank  notes 
will  be  gone  at  once.  No  cadi  will  arrive  from  the 
bufmefs  of  difcounting  merchants’  -bills,  for  every 
merchant  will  pay  off'  thofe  bills  in  bank  notes  and 
not  in  ca^fh.  1  here  is  therefore  no  means  left  for 
the  bank  to  obtain  a  new  fupply  of  cadi  after  the 

C 

I  *  -V 


\ 


(  -s  ) 

ft 

prefent  quantity  be  paid  away,  But,  befides  the 
impoflibUity  of  paying  the  intereft  of  the  funded 
debt  in  cafb,  there  are  many  thoufand  perfons  in 
London  and  in  the  country,  who  are  holders  of 
bank  notes  that  came  into  their  hands  in  the  fair 
way  of  trade,  and  who  are  not  flockholders  in  the 
funds  ;  and  as  fuch  perfons  have  had  no  hand  ia 
enc reading  the  demand  upon  the  bank,  as  thofe  have 
Lad,  who  for  their  own  private  intereft,  like  Boyd 
and  others,  are  contracting,  or  pretending  to  con- 
tra£t,  for  new  loans,  they  will  conceive  they  have 
a  juft  right  their  bank  notes  fhould  be  paid  fir  ft* 
Boyd  has  been  very  fly  in  France,  in  changing  his 
paper  into  caili.  He  will  be  juft  as  fly  in  doing  the 
fame  thing  in  London,  for  he  has  learned  to  calcu¬ 
late-,  and  then  it  is  probable  he  will  fet  off  for  America. 

A  ftoppage  of  payment  at  the  bank  is  not  a  new 
thing.  Smith,  in  his  Wealth  of  Nations,  book  2, 
chap,  2,  fays,  That  in  the  year  1696.  exchequer  bills 
fell  forty,  fifty  and  fixty  per  cent,  bank  notes  twen¬ 
ty  per  cent,  and  the  bank  ftopt  payment.  That 
which  happened  in  1696  may  happen  again  in  179 6. 
The  period  in  which  it  happened  was  the  laft  year  of 
tKe  war  of  king  William.  It  neceflarily  put  a  ftcp  to 
the  further  emifiion  of  exchequer  and  navy  bills,  and 
to  the  railing  of  new  loans ;  and  the  peace  which 
took  place  the  next  year  was  probably  hurried  cn 
by  this  cireumftance,  and  fared  the  bank  from  bank¬ 
ruptcy.  Smith,  in  fpeaking  of  the  eircumftances 
of  the  bank,  upon  another  occafion,  lays  (book  2, 
chap.  2.)  “  This  great  company  has  been  reduced 

“  to  the  neceffity  of  paying  in  fix-pences.”  W  hem 
a  bank  adopts  the  expedient  of  paying  in  fix-pences 
it  is  a  confefiion  of  infolvency.. 

It  is  worthy  of  obfervation,  that  every  cafe  of  a 
failure  in  finances,  fince  the  fyftem  of  paper  began*. 


1 


I 


(  '9  ) 

has  produced  a  revolution  in  governments,  either 
total  or  partial.  A  failure  in  the  finances  of  France 
produced  the  French  revolution.  A  failure  in  the 
finance  of  the  ailignats  broke  up  the  revolutionary 
government,  and  produced  the  prefent  French  Con- 
llitution.  A  failure  in  the  finances  or  the  old  Con- 
grefs  of  America,  and  the  embarra Aments  it  brought 
upon  commerce,  broke  up  the  fyftem  of  the  old 
confederation,  and  produced  the  prefent  Federal 
Conltitution.  If  then  we  admit  of  reafoning  by 
companion  of  caufes  and  events,  a  failure  in  the 
Englifh  finances  will  produce  fome  change  in  the 
government  of  that  country. 

As  to  Mr.  Pitt’s  project  of  paying  off  the  national 
debt  by  applying  a  million  a  year  for  that  purpefe, 
while  he  continues  adding  more  than  twenty  milli¬ 
ons  a  year  to  it,  it  is  like  fetting  a  man  with  i  wood¬ 
en  leg  to  run  after  a  hare.  The  longerlie  runs  the 
farther  he  is  off.  , 

When  I  faid  that  the  funding  fyftem  had  entered 
the  lad  twenty  years  of  its  exigence,  I  certainly 
did  not  mean  that  it  would  continue  twenty  years, 
and  then  expire  as  a  leafe  would  do.  I  meant  to  de- 
feribe  that  age  of  decrepitude  in  which  death  is 
every  day  to  be  expected,  and  life  cannot  continue 
long.  But  the  death  of  credit,  or  that  date  that  is  call¬ 
ed  bankruptcy,  is  not  always  marked  by  thefe  pre- 
greflive  ftages  of  vifible  decline,  that  mark  the  de¬ 
cline  of  natural  life.  In  the  progrefhon  of  natural 
life,  age  cannot  counterfeit  youth,  nor  conceal  the 
departure  of  juvenile  abilities.  But  it  is  otherwise 
with  refpedt  to  fhe  death  of  credit;  for  though  all 
the  approaches  to  bankruptcy  may  adtuaily  exid  in 
circumftances,  they  admit  of  being  concealed  by 
appearances.  Nothing  is  mere  common  than  to  fee 
the  bankrupt  of,  to-day  a  man  in  credit  but  the  day 


before ;  yet  no  fooner  is  the  real  ftate  of  his  affairs 
known,  than  every  body  can  fee  he  had  been  infol- 
vent  long  before.  In  London,  the  greateft  theatre 
of  bankruptcy  in  Europe,  this  part  of  the  fubject 
will  be  well  and  feelingly  underftood. 

Mr.  Pitt  continually  talks  of  credit  and  of  the  na¬ 
tional  refources.  Thefe  are  two  of  the  feigned  ap¬ 
pearances  by  which  the  approaches  to  bankruptcy 
are  concealed.  That  which  he  calls  credit  may  ex- 
ift,  as  I  have  juft  {hewn,  in  a  ftate  of  infolvency, 
and  is  always,  what  I  have  before  defcribed  it  to 
be,  Jufpicion  afteep. 

As  to  national  refources,  Mr.  Pitt,  like  all  the 
Englifh  financiers  that  preceded  him  fince  the  fund¬ 
ing  fylftem  began,  has  uniformly  miftaken  the  na¬ 
ture  of  a  refource ;  that  is,  they  have  miftaken  it 
confiftently  with  the  delufion  of  the  funding  fyftem; 
but  time  is  explaining  the  delufion.  That  which 
he  calls,  and  which  they  called,  a  refource,  is  not 
a  refource,  but  is  the  anticipation  of  a  refource. 
They  have  anticipated  <what  'would  have  been  a 
refource  in  another  generation,  had  not  the  ufe  of 
it  been  fo  anticipated.  The  funding  fyftem  is  a  fyftem 
of  anticipations.  Thofe  who  eftablifhed  it  an  hun¬ 
dred  years  ago,  anticipated  the  refources  of  thofe 
who  were  to  live  an  hundred  years  after  ;  for  the 
people  of  the  prefent  day  have  to  pay  the  intereft  of 
the  debts  contracted  at  tftat  time,  and  of  all  debts 
contracted  fince.  But  it  is  the  laft  feather  that  breaks 
the  horfe’s  back.  Had  the  fyftem  began  an  hun¬ 
dred  years  before,  the  amount  of  taxes  at  this  time, 
to  pay  the  annual  intereft  at  four  per  cent,  (could  we 
fuppofe  fuch  a  fyftem  of  infanity  could  have  conti¬ 
nued)  would  be  two  hundred  and  twenty  millions 
annually  ;  for  the  capital  of  the  debt  would  be  548 6 
millions,  according  to  the  ratio  that  afcertains  the  ex- 


/ 


!  :  •  (  ai  ) 

pence  cf  the, wars  for  the  hundred  years  that  are  palL 
But  long  before  it  could  have  reached  this  period, 
the  value  of  bank  notes,  from  the  immenfe  aAuanti» 
ty  of  them  (for  it  is  in  paper  only  that  fuch  a  no¬ 
minal  revenue  could  be  collected)  would  have  been 
as  low  or  lower  than  continental  paper-money  has 
been  in  America,  or  aflignats  in  France  ;  and  as  to 
the  idea  of  exchanging  the'm  for  gold  and  Fiver,  it 
is  too  abfurd  to  be  contradicted. 

Do  we  not  fee  that  nature,  in  all  her  operations, 
difowns  the  vifionary  bafis  upon  which  the  funding 
fyitem  is  built.  She  adds  always  by  renewed  fuc- 
ceflions,  and  never  by  accumulating  additions  perpe¬ 
tually  progrefling.  Animals  and  vegetables,  men  and 
trees,  have  exifled  ever  fince  the  world  began  ;  but 
that  exiftence  has  been  carried  on  by  fucceffions  cf 
generations,  and  not  by  continuing  the  fame  men 
and  the  fame  trees  in  exigence  that  exifled  hrfl ; 
and  to  make  room  for  the  new,  fhe  removes  the  old. 
Every  natural  ideot  can  fee  this.  It  is  the  flock- 
jobbing  ideot  only  that  miflakes.  He  has  conceived 
that  art  can  do  what  nature  cannot.  Fie  is  teaching 
her  a  new  fyflem — That  there  is  no  occafion  for 
man  to  die. — That  the  fcheme  of  creation  can  be 
carried  on  upon  the  plan  of  the  funding  fyflem. — 
That  it  can  proceed  by  continual  additions  of  new 
beings,  like  new  loans,  and  all  live  together  in 
eternal  youth.  Go,  count  the  graves,  thou  idect, 
and  learn  the  folly  of  thy  arithmetic. 

But  befides  thefe  things,  there  is  fomething  vifi- 
bly  farcical  in  the  whole  operation  of  loaning.  It  is 
fcarcely  more  than  four  years  ago  that  fuch  a  rot  of 
bankruptcy  fpread  itfelf  over  London,  that  the 
whole  commercial  fabric  tottered  ;  trade  and  credit 
were  at  a  ftand  ;  and  luch  was  the  Fate  of  things, 
that  to  prevent,  or  fufpend,  a  general  bankruptcy. 


(  “  ) 


■s 


die  government  lent  the  merchants  ffx  millions  in 
government  paper,  and  new  the  merchants  lend  the 
government  twenty-two  millions  in  their  papery  and 
two  parties,  Boyd  and  Morgan,  men  but  little  known, 
contend  who  (hall  be  the  lenders.  "What  a  farce  is 
this  1  I:  reduces  the  operation  of  loaning  to  acccm- 
dation  paper,  in  which  the  competitors  contend, 
not  who  {hall  lend,  but  who  fhall  fign,  becaufe  there 
is  fomething  to  be  get  for  figning. 

Every  Englifh  hock-jobber  and  minifter  boafts  of 
.  the  credit  of" England.  Its  credit,  fay  they,  is  grea¬ 
ter  than  that  of  any  country  in  Europe.  There  is  a 
good  reafon  for  this*,  for  there  is  not  another  country 
in  Europe  that  could  be  made  the  dupe  of  fuch  a 
delufion.  The  Engliih  funding  fyftem  will  remain 
a  monument  of  wonder,  not  fo  much  on  account  of 
the  extent  to  which  it  has  been  carried,  as  of  the 
folly  of  believing  in  it. 

Thofe  who  had  formerly  predicted  that  the  fun¬ 
ding  fyftem  would  break  up  when  the  debt  fhould 
amount  to  one  hundred  or  one  hundred  and  fifty 
millions,  erred  only,  in  not  diilinguilhing  between 
infolvency  and  actual  bankruptcy;  for  the  infolvency 
commenced  as  foon  as  the  government  became  un¬ 
able  to  pay  the  intereft  in  calh,  or  to  give  cafh  for 
the  bank  notes  in  which  the  intereft  'was  paid,  whe¬ 


ther  that  inability  was  known  or  not,  cr  whether  it 
\yas  fufpedted  or  not.  Infolvency  always  takes  place 
before  bankruptcy,  for  bankruptcy  is  nothing  more 
than  the  publication  of  that  infolvency.  In  the  af¬ 
fairs  cf  an  individual,  it  often  happens  that  inioi- 
vency  exifts  feveral  years  before  bankruptcy,  and 
that  the  infolvencv  is  concealed  and  carried  on  till 
the  individual  is  not  able  to  pay  one  (hilling  in  the 
pound.  A  government  can  ward  off  bankruptcy 
longer  than  an  individual ;  but  infolvency  will  in- 


I 


(  23  ) 

evitab’y  produce  bankruptcy,  whether  in  an  indi¬ 
vidual  or  in  a  government.  If  then  the  quantity  of 
bank  notes  payable  on  demand,  which  the  bank  has 
iliued,  are  greater  than  the  bank  can  pay  oft,  the 
bank  is  infolvent ;  and  when  that  infolvency  be  de¬ 
clared,  it  is  bankruptcy.  * 


*  Among  the  delufions  that  have  been  impofed  upon  the  ra- 
t;on  by  minifters,  to  give  a  falfe  colouring  to  its  affairs,  and  by 
none  more  than  by  Mr.  Pitt,  is  a  rnstley  amphibious  cara&sred 
thing  called  the  balamtof  trade.  This  balance  »f  trade,  as  it  is 
called,  is  taken  from  the  euftom-houfe  books,  in  which  entries 
are  madeot  all  cargoes  exported,  and  alfo  or  all  cargoes  imported 
in  each  year;  and  when  the  value  of  the  exports,  according  to 
the  price  fet  upon  them  by  the  exporter  or  by  the  cuftom-houfe, 
is  greater  than  the  value  of  the  imports  eftimated  in  the  fame 
manner,  they  fay ,  the  balance  of  trade  is  fo  much  in  their  favour- 
The  euftom-houfe  books  prove  regularly  enough  that  fo  many 
Cargoes  have  been  exported,  and  fo  many  imported;  but  this  is 
all  that  they  prove  or  were  intended  to  prove  They  have 
nothing  to  do  with  the  balance  of  profit  or  lofs ;  ar.d  it  is 
ignorance  to  appeal  to  them  upon  that -account ;  for  the  cafe  is, 
that  the  greater  the  lofs  is  iu  any  one  year,  the  higher  will  this 
thing  called  the  balance  of  trade  to  be  according  to  the 

cuftom-hcufe  book?.  Forexample,  nearly  the  whole  of  the  Me¬ 
diterranean  convoy  has  been  taken  by  the  French  this  year  :  con- 
fequently  thofe  cargoes  will  not  appear  as  imports  on  the  cuftom- 
houfe  books,  and  therefore  the  balance  of  trade,  by  which  they 
mean  the  profits  of  it  will  appear  to  be  lb  much  the  greater  as 
this  lofs  amounts  to;  and  on  the  other  hand,  had  the  lofs  not 
happened,  the  profits  would  have  appeared  to  have  been  fo 
•much  the  lefs.  All  the  lofles  happening  at  fea  to  returning  car¬ 
goes,  by  accidents,  by  the  elements,  or  by  capture,  make  the 
balance  appear  the  higher  on  the  licie  of  the  exports;  and  were 
they  all  loft  at  fea,  it  would  appear  to  be  all  profit  c.n  the  cuftom- 
houfe  b©oks.  Alfo  every  cargo  of  exports  that  is  loft,  thatoccafi- 
ons  another  to  be  fent,  adds  in  like  manner  to  the  fide  of  the 
exports,  and  appears  as  profit.  This  year  the  balance  of  trade 
wii)  appear  high,  became  the  Ioffes  have  been  great  by  capture 
and  by  ftonns.  The  ignorance  oftheBikifh  parliament,  in  lif- 
tening,  to  this  hackneyed  imposition  of  miniftsrs  about  the  bal¬ 
ance  of  trade,  is  aftonilhing.  Jt  Ihews  how  little  the  know  of 
national  affairs,  and  Mr.  Grey  may  as  well  talk  Greek  to  them- 
as  make  motions  about  the  ftate  oi  the  nation.  They  uodet  - 
Gaud  fox-hunting  and  the  gajT.e*fa\vs'. 


C  24  ) 


I  come  now  to  (hew  the  fever?. I  ways  by  which 
hank  notes  get  into  circulation.  I  fhali  afterwards 
oifer  an  eftimate  on  the  total  quantity  or  amount  of 
bank  notes  exifling  at  this  moment. 

The  bank  acts  in  three  capacities.  As  a  bank  of 
difcount ;  as  a  bank  of  depofit  j  and  as  banker  for 
tire  government. 

Firfi,  as  a  bank  of  difcount.  The  bank  clifcounts 
merchants’  bills  of  exchange  for  two  months.  When 
a  merchant  has  a  bill  that  will  become  due  at  the 
end  of  two  months,  and  wants  payment  before  that 
time,  the  bank  advances  that  payment  to  him,  de¬ 
ducting  therefrom  at  the  rate  of  five  per  cent,  per 
ann.  The  bill  of  exchange  remains  at  the  bank  as 
a  pledge  or  pawn,  and  at  the  end  of  two  months  it 
muff  be  redeemed.  This  tranfadfion  is  done  alto¬ 
gether  in  paper  ;  for  the  profits  of  the  bank,  as  a 
bank  of  difcount,  arife  entirely  from  its  making  ufe 
of  paper  as  money v  The  bank  gives  bank  notes  to 
the  merchant,  in  difcounting  the  bill  of  exchange, 
and  the  redeemer  of  the  bill  pays  bank  notes  to  the 
bank  in  redeeming  it.  It  very  feldonr  happens  that 
any  real  money  pafTes  between  them. 

If  the  profits  of  a  bank  be,  for  example,  two  hun¬ 
dred  thoufand  pounds  a  year  (a  great  fum  to  be 
made  merely  by  exchanging  one  fort  of  paper  for 
another,  and  which  fhews  a'ifo  that  the  merchants 
of  that  place  are  preffed  for  money-  for  payments, 


inftead  of  having  money  to  fpare  to  lend  to  govern¬ 


ment)  it  proves'  that  the  bank  difeounts  to  the  2- 
mount  of  four  millions  annually,  or  £666,666  i 
every  two  months,  and  as  there  never  remain  111 
the  bank  more  than  two  months,  pledges,  of  the 
value  of  / 666,666  at  any  one  time,  the  amount  cf 
bank  notes  in  circulation  at  any  one  time  fhould 
not  be  more  than  to  that  amount.  This  is  mfficient  : 


(  2J  ) 

I 

to  fnew  that  the  prefent  immenfe  quantity  of  bank 
notes,  which  are  diftributed  through  every  city, 
town,  village,  and  farm-houfe  in  England,  cannot 
be  accounted  for  on  the  fcore  of  difeounting. 

Secondly,  as  a  bank  of  depofit.  To  depofit  money 
at  the  bank  means  to  lodge  it  there  for  the  fake  of 
convenience,  and  to  be  drawn  out  at  any  moment 
the  depofiter  pleafes,  or  to  be  paid  away  to  his  order* 
When  the  bufinefs  of  difeounting  is  great,  that  of  de= 
pofiting  is  neceflarily  fmall.  No  man  depofits  and 
applies  for  difeounts  at  the  fame  time ;  for  it  would 
be  like  paying  intercfl  for  lending  money  inftead  of 
for  borrowing  it.  The  depofits  that  are  now  made 
at  the  bank  are  almofl  entirely  in  bank  notes,  and 
confequently  they  add  nothing  to  the  ability  of  the 
bank  to  pay  off  the  bank  notes  that  may  be  preferred 
for  payment ;  and  befides  this,  the  depofits  are  no 
more  the  property  of  the  bank,  than  the  cafh  or 
bank  notes  in  a  merchant’s  counting  houfe1  are  the 
property  of  his  book-keeper.  No  great  increafe 
therefore  of  bank  notes,  beyond  what  the  difeount¬ 
ing  bufinefs  admits,  can  be  accounted  for  on  the 
fcore  of  depofits. 

Thirdly.  The  bank  a£ts  as  banker  for  the  govern¬ 
ment.  This  is  the  connexion  that  threatens  ruin  to 
every  public  bank.  It  is  through  this  connection  that 
the  credit  of  a  bank  is  forced  far  beyond  what  it 
ought  to  be,  and  {till  further  beyond  its  ability  to 
pay.  It  13  through  this  connection  that  fuch  an  im¬ 
menfe  redundant  quantity  of  bank  notes  have  gotten 
into  circulation;  and  which,  inftead  of  being  ifTued 
becaufe  there  was  property  in  the  bank,  have  been 
iflued  becaufe  there  was  none. 

When  the  treafury  is  empty,  which  happens  in 
almofl  every  year  of  every  war,  its  coffers  at  the 
bank  are  empty  alfo.  It  is  in  this  condition  of  empty- 

D 


( 


nefs  that  the  minifter  has  rccourfe  to  emifliors  o£ 
what  are  called  exchequer  and  navy  bills,  which 
continually  generates  a  new  increafe  of  bank  notes, 
and  which  are  fported  upon  the  public,  without  there 
being  property  in  the  bank  to  pay  them.  Thefc 
exchequer  and  navy  bills  (being  as  I  have  faid  emit¬ 
ted  becaufe  the  treafury  and  its  coffers  at  the  bank 
are  empty  and  cannot  pay  the  demands  that  come  in) 
are  no  other  than  an  acknowledgment  that  the  bear¬ 
er  is  entitled  to  receive  fo  much  money.  They  may 
be  compared  to  the  fettlement  of  an  account,  in 
which  the  debtor  acknowledges  the  balance  he  owes, 
and  for  which  he  gives  a  note  of  hand  ;  or  to  a  note 
of  hand  given  to  raife  money  upon  it. 

Sometimes  the  bank  difeounts  thofe  bills  as  it 
would  difeount  merchants’  bills  of  Exchange  ;  fome- 
times  it  purchafes  them  of  the  holders  at  the  current 
price  ;  and  fometimes  it  agrees  with  the  minifter  to 
pay  an  intereft  upon  them  to  the  holders  and  keep 
them  in  circulation.  In  every  one  of  thofe  cafes  an 
additional  quantity  of  bank  notes  get  into  circulation, 
and  are  fported,  as  I  have  faid,  upon  the  public, 
without  there  being  property  in  the  bank,  as  banker 
for  the  government,  to  pay  them  :  and  befides  this 
the  bank  has  now  no  money  of  its  own  j  for  the 
money  that  was  originally  fubferibed  to  begin  the 
credit  of  the  bank  with,  at  its  frrft  eftablifhment,  has 
been  lent  to  government  and  -wafted  long  ago. 

“  The  bank  (fays  Smith,  book  2,  chap.  2)  acts  not 

only  as  an  ordinary  bank,  blit  as  a  great  engine  of 
“  ftate  :  it  receives  and  pays  the  greater  part  of  the 
“  annuities  which  are  due  to  the  creditors  of  the 
<c  public .”  (It  is  worth  obferving  that  the  public ,  or 
the  nation ,  is  always  put  for  -  the  government  in 
fpeaking  of  debts.)  ((  It  circulates,  fays  Smith,  ex- 
i(  chequer  bills,  and  it  advances  to  government  the 


{  27  ) 


w  annual  amount  of  the  land  and  malt  taxes,  which 
is  are  frequently  not  paid  till  feveral  years  after* 
cc  wards.”  (This  advancement  is  alfo  done  in  bank 
notes  for  which  there  is  not  property  in  the  bank.) 
((  In  thofe  different  operations  (fays  Smith)  its  duty 
“  to  the  public  may  fometimes  have  obliged  it,  without 
<(  any  fault  of  its  dire&ors,  to  overjlock  the  circulation 
“  with  paper -money”  bank  notes.  How  its  duty  to 
the  public  can  induce  it  to  overjlock  that  public  with  pro- 
miffory  bank  notes  which  it  cannot  pay ,  and  thereby 
expofe  the  individuals  of  that  public  to  ruin,  is  too 
paradoxical  to  be  explained  •,  for  it  is  on  the  credit 
which  individuals  give  to  the  bank  by  receiving  and 
circulating  its  notes,  and  not  upon  its  own  credit  or 
its  own  property,  for  it  has  none,  that  the  bank 
fports.  If  however  it  be  the  .duty  of  the  bank  to  ex¬ 
pofe  the  public  to  this  hazard,  it  is  at  lead  equally 
the  duty  of  the  individuals  of  that  public  to  get 
their  money  and  take  care  of  themfelves ;  and  leave 
it  to  placemen,  penfioners,  government  contractors, 
Reeve’s  affociation,  and  to  the  members  of  both 
houfes  of  parliament,  w’ho  have  voted  away  the 
money  of  the  public  at  the  nod  of  the  minifter,  to 
fupport  the  credit  of  the  bank,  and  of  the  unpaid 
bank  notes,  if  they  can,  and  for  which  their  edates 
-ought  to  anfvver  as  far  as  they  will  go. 

There  has  always  exifted,  and  {till  exids,  a  my- 
derious  fufpicious  connection  between  the  minider 
and  the  directors  of  the  bank,  and  which  explains 
itfelf  no  otherways  than  by  a  continual  encreafe  of 
bank  notes.  Without,  therefore,  entering  into  any 
further  details  of  the  various  contrivances  by  which 
bank  notes  are  iffued  and  thrown  upon  the  public  ; 

I  proceed,  as  I  before  mentioned,  to  offer  an  edi- 
mate  on  the  total  quantity  of  bank  notes  in  circula¬ 
tion. 


/  '  '4s' nr* 

However  difpofed  governments  may  be  to  yvriua 
money  by  taxes  from  the  people,  there  is  a  limit  to 
the  practice  eftablifhed  in  the  nature  of  things. 
That  limit  is  the  proportion  between  the  quantity  of 
money  in  a  nation,  be  that  quantity  what  it  may, 
and  the  greateft  quantity  of  taxes  that  can  be  raifed 
•  upon  it.  People  have  other  ufes  for  money  befides 
paying  taxes ;  and  it  is  only  a  proportional  part  of 
that  money  they  can  fpare  for  taxes,  as  it  is  only  a 
proportional  part  they  can  fpare  for  houfe-rent,  for 
cloathing,  or  for  any  other  particular  ufe.  Thefe 
proportions  find  out  and  eftablifh  themfelves;  and 
that  with  fuch  exadt nefs  that  if  any  one  part  exceeds 
its  proportion,  all  the  other  parts  feel  it. 

Before  the  invention  of  paper  money  (bank  notes) 
there  was  no  other  money  in  the  nation  than  gold 
and  filver,  and  the  greateft  quantity  of  money  that 
ever  was  raifed  in  taxes,  during  that  period,  never 
exceeded  a  fourth  part  of  the  quantity  of  money  in 
the  nation.  It  was  high  taxing  when  it  came  to 
this  point.  The  taxes  in  the  time  of  William  the 
third,  never  reached  to  four  millions  before  the  in¬ 
vention  of  paper  ;  and  the  quantity  of  money  in  the 
nation  at  that  time  was  eftimated  to  be  about  fix- 
teen  millions.  The  fame  proportions  eftablifhed 
themfelves  in  France.  There  was  no  paper-money 
in  France  before  the  prefent  revolution,  and  the 
taxes  were  collected  in  gold  and  filver  money.  The 
higheft  quantity  of  taxes  never  exceeded  twenty-two 
millions  fterlmg ;  and  the  quantity  of  gold  and  fil¬ 
ver  money  m  the  nation,  at  the  fame  time,  as  ftated 
by  Mr.  Neckar  from  returns  of  coinage  atthe  mints, 
in  his  treatife  on  the  adminiftration  of  the  finances, 
Was  about  ninety  millions  fteriing.  To  go  beyond 
this  limit,  of  a  fourth  part,  in  England,  they  were 
obliged  to  introduce  paper-money  5  and  the  attempt 


(  29  ) 

to  go  beyond  it  in  France  where  paper  could  not  be 
introduced,  broke  up  the  government.  This  propor¬ 
tion  therefore  of  a  fourth  part  is  the  limit  which  the 
;  nature  of  the  thing  eftablilhes  for  itfelf,  be  the 
!  quantity  of  money  in  a  nation  more  or  lefs. 

i  he  amount  of  taxes  in  England  at  this  time  is 
full  twenty  millions,  and  therefore  the  quantity  of 
gold  and  iilver  and  of  bank  notes  taken  together,, 
amounts  to  eighty  millions.  The  quantity  of  gold  and 
'  hlver  as  Hated  by  Lord  Hawkefbury’s  fecretary  (George 
Chalmers)  as  I  have  before  (hewn,  is  twenty  mil- 
;  lions  ;  and  therefore  the  total  amount  of  bank  notes 
>!  in  circulation,  all  made  payable  on  demand,  is  lixty 
i  millions.  This  enormous  ium  will  aflonifh  the  molt 

•  ftupid  Hock-jobber,  and  overpower  the  credulity  of 
j  the  moll  thougntlefs  Englifhman  ;  but  were  it  only 

a  third  part  of  that  fum  the  bank  cannot  pay  half  a 
crown  in  the  pound. 

There  is  fomething  curious  in  the  movements  of 
this  modern  complicated  machine,  the  funding  fy- 
!  Item  5  and  it  is  only  now  that  it  is  beginning  to  un¬ 
fold  the  full  extent  of  its  movements.  In  the  flrfh 
(i  part  of  its  movements  it  gives  great  powers  into  the 
i  hands  of  government,  and  in  the  laft  part  it  takes 
I  them  completely  away. 

The  funding  fyflem  fet  out  with  railing  revenues 
I  under  the  name  of  loans,  by  means  of  which  go- 

•  vernment  became  both  prodigal  and  powerful.  The 
.1  loaners  alTumed  the  name  of  creditors,  and  though  it 
ij  was  loon  difcovered  that  loaning  was  government¬ 
jobbing,  thofe  pretended  loaners,  or  the  perfons 
i  who  purchafed  into  the  funds  afterwards,  con¬ 
ceived  themfelves  not  only  to  be  creditors,  but  to  be 
the  only  creditors. 

But  fuch  has  been  the  operation  of  this  compli¬ 
cated  machine,  the  funding  fyftem,  that  it  has  pro- 


(  3°  ) 

duccd,  unperceived,  a  fecond  generation  of  credi¬ 
tors;  more  numerous  and  far  more  formidable,  and 
wi  thal  more  real  than  the  firft  generation;  for  eve- 
jy  holder  of  a  bank  note  is  a  creditor,  and  a  real 
creditor,  and  the  debt  due  to  him  is  made  payable 
on  demand.  The  debt  therefore  which  the  go¬ 
vernment  owes  to  individuals  is  compofed  of  two 
parts ;  the  one  about  four  hundred  millions  bearing 
interefl,  the  other  about  fixty  millions  payable  on 
demand.  The  one  is  called  the  funded  debt,  the 
other  is  the  debt  due  in  bank  notes. 

This  fecond  debt  (that  contained  in  the  bank 
notes)  has,  in  a  great  meafure,  been  incurred  to 
pay  the  interefl  of  the  firft  debt ;  fo  that  in  fa£t  lit¬ 
tle  or  no  real  interefl  has  been  paid  by  government. 
The  whole  has  been  delufion  and  fraud.  Govern¬ 
ment  firft  contradled  a  debt  in  the  form  of  loans 
with  one  clafs  of  people,  ana  then  run  clandeftine- 
!y  into  debt  with  another  clafs,  by  means  of  bank 
notes,  to  pay  the  interefl.  Government  acled  or 
itfelf  in  contracting  the  firft  debt,  and  made  a  ma¬ 
chine  of  the  bank  to  contract  the  fecond. 

It  is  this  fecond  debt  that  changes  the  feat  cf 
power  and  the  order  of  things  ;  for  it  puts  it  in  the 
power  of  even  a  fmall  part  of  the  holders  of  bank 
notes  (had  they  no  other  motive  than  difguft  at 
Pitt  and  Grenville’s  fedition  bills)  to  controul  any 
meafure  of  government  they  found  to  be  injurious  to 
their  interefl ;  and  that  not  by  popular  meetings,  or 
'  popular  focieties,  but  by  the  fimple  and  eafy  opera¬ 
tion  of  with-holding  their  credit  from  that  govern¬ 
ment;  that  is,  by  individually  demanding  payment 
at  the  bank  for  every  bank  note  that  come3  into  their 
hands.  Why  fhould  Pitt  and  Grenville  expecl  that 
the  very  men  whom  they  infult  and  injure  fhould  at 
the  fame  ftime  continue  to  fupport  the  meafures  of 


Pitt  and  Grenville  by  giving  credit  to  their  pro** 
miflory  notes  of  payment.  No  new  emiffions  of  bank 
notes  could  go  on  while  payment  was  demanding  on 
the  old,  and  the  cafh  in  the  bank  wafting  daily 
away;  nor  any  new  advances  be  made  to  govern¬ 
ment  or  to  the  Emperor  to  carry  on  the  war,  nor 
any  new  emifiion  be  made  of  exchequer  bills. 

“  The  bank ,  fays  Smith,  (book  2.  chap.  2)  is  a 
great  engine  of fl ate .”  And  in  the  fame  paragraph  he 
fays,  (t  The  fl  ability  of  the  bank  is  equal  to  that  of  the 
Britifj  government  ”  which  is  the  fame  as  to  fay 
that  the  {lability  of  the  government  is  equal  to  that 
of  the  bank,  and  no  more.  If  then  the  bank  cannot 
pay,  the  arch-treafurer  of  the  holy  Roman  empire  (S.  R. 
I.  A.*)  is  a  bankrupt.  When  Folly  invented  Titles, 
(he  did  not  attend  to  their  application;  for  ever 
fince  the  government  of  England  has  been  in  the 
hands  of  arch-treafurers,  it  has  been  running  into 
bankruptcy  ;  and  as  to  the  arch-treafurer  apparent,  he 
has  been  a  bankrupt  long  ago.  What  a  miferablc 
profpecl  has  England  before  its  eyes! 

Before  the  war  of  1755  there  were  no  bank  notes 
lower  than  twenty  pounds.  During  that  war  bank 
notes  of  fifteen  pounds  and  of  ten  pounds  were 
coined ;  and  now,  fince  the  commencement  of  the 
prefent  war  they  are  coined  as  low  as  five  pounds. 
Thefe  five  pound  notes  will  circulate  chiefly  among 
little  (hop  keepers,  butchers,  bakers,  market  people, 
renters  of  fmall  houfes,  lodgers,  & c.  All  the  high 
departments  of  commerce,  and  the  affluent  ftations 
of  life  were  already  overflocked,  as  Smith  exprefies  it, 
with  bank  notes.  No  place  remained  open  wherein 
to  crowd  an  additional  quantity  of  bank  notes  but 
among  the  clafs  of  people  I  have  juft  mentioned,  and 
the  means  of  doing  this  could  be  beft  eftecled  by 


*  Part  of  tilt  infeription  on  an  Eujjlilh  guinea. 


{  3*  ) 

v  .  •,  k  j  -  -  '*  *»- 

coining  five  pound  notes.  This  conduft  has  the 
appearance  of  that  of  an  unprincipled  infolvent, 
who,  when  on  the  verge  of  bankruptcy  to  the 
amount  of  many  thoufands,  will  borrow  as  low  as 
five  pounds  of  the  fervants  in  his  houfe,  and  break 
the  next  day. 

But  whatever  momentary  relief  or  aid  the  mini- 
Her  and  his  bank  might  expedf  from  this  low  con¬ 
trivance  of  five  pound  notes,  it  will  encreafe  the 
inability  of  the  bank  to  pay  the  higher  notes,  and 
haften  the  deftrudfion  of  all;  for  even  the  fmall 
taxes  that  ufed  to  be  paid  in  money  will  now  be 
paid  in  thofe  notes,  and  the  bank  will  fohn  find  it- 
feif  with  fcarcely  any  other  money  than  what  the^ 
hair  powder  guinea  tai  brings  in. 

The  bank  notes  make  the  meft  ferious  part  of  the 
bufinefs  of  finance;  what  is  called  the  national  fun~ 
ded  debt  is  but  a  tride  when  put  in  comparifcn  with 
it ;  yet  the  cafe  of  the  bank  notes  has  never  been 
touched  upon.  But  it  certainly  ought  to  be  known 
upon  what  authority,  whether  that  of  the  minifter 
or  of  the  dire&ors,  an  1  upon  what  foundation,  fuch 
immenfe  quantities  are  iffued.  I  have  fiated  the 
amount  of  them  at  fixty  millions  fielding  ;  I  have 
produced  data  for  that  efiimation;  and  befides  this, 
the  apparent  quantity  of  them,  far  beyond  that  of 
gold  and  fiiver  in  the  nation,  corroborates  therewith. 
But  were  there  but  a  third  part  of  fixty  millions,  the 
bank  cannot  pay  half  a  crown  in  the  pound;  for' no 
new  fupply  of  money,  as  before  faid,  can  arrive  it 
the  bank,  as  alb  the  taxes  will  be  paid  in  paper. 

When  the  funding  lyftem  began,  it  was  not 
doubted  that  the  loans  that  had  been  borrowed 
would  be  repaid.  Government  not  only  propagated 
that  belief,  but  it  began  paying  them  off.  In  time 
this  profeffion  came  to  be  abandoned;  and  it  is  not 


{  33  ) 


\ 


J* 


difficult  to  fee  that  bank  notes  will  march  the  fame 
wav  5  for  the  amount  of  them  is  only  another  debt 
under  another  name  *,  and  the  probability  is,  that  Mr. 
Pitt  will  at  laft  propofe  funding  them.  In  that  cafe 
bank  notes  will  not  be  fo  valuable  as  French  a^  ig~ 
nats.  The  affignats  have  a  folid  property  in  referve 
in  the  national  domains;  bank  notes  have  none  ;  and 
befides  this,  the  Englifh  revenue  mult  then  fink 
down  to  what  the  amount  of  it  was  before  the 
funding  fyftem  began,  between  three  and  four  mil¬ 
lions  :  °  One  of  which  the  arch-treafurer  would  re¬ 
quire  for  himfelf,  and  the  arch-preafurer  apparent 
would  require  three  quarters  of  a  million  more  to 
pay  his  debts.  “  In  France ,  fays  Sterne,  they  order 
thefe  things  better .” 

I  have  now  expofed  the  Englifh  lyftem  oi  finance 
to  the  eyes  of  all  nations  ;  for  this  work  will  be  pub- 
lifhedin  all  languages.  In  doing  this,  I  have  done 
an  adtof  juftice  to  thofe  numerous  citizens  of  neu¬ 
tral  nations  who  have  been  impofed  upon  by  that 
fraudulent  fyftem,  and  who  have  property  at  flake 
upon  the  event. 

As  an  individual  citizen  oi  America,  and  as  far  as 
an  individual  can  go,  I  have  revengea  (ii  I  may  ufc 
the  eXpreffion  without  any  immoral  meaning)  the 
piratical  depreciations  committed  on  the  American 
commerce  by  the  Englifh  government.  I  have  *Cl3- 
liated  for  France  on  the  fubject  of  finance;  and  I 
conclude  with  retorting  on  Mr.  Pitt  the  exprefficn 
he  ufed  again  ft  France,  and  fay,  that  the  Englifh 
of  finance  “  is  on  the  verge,  nay  even 

tn*  the  gulph  of  bankruptcy; ” 

THOMAS  PAINE. 


Paris ,  I  qth  Germinal , 
Ath  year  of  the  Republic, 
April  8,  I  7  9  0 . 


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SPEECH 


OF 

THOMAS  PAINE, 

As  delivered  in  the  Convention ,  July  7,  1795. 
Wherein  he  alludes  to  the  preceding  Work. 

ON  the  motion  of  Lanthenas.  “  That  permifiion 
be  granted  to  Thomas  Paine,  to  deliver  his  fen- 
timents  on  the  Declaration  of  Pdghts  and  the  Confti- 
tution,  Thomas  Paine  afcended  the  Tribune;  and  no 
oppofition  being  made  to  the  motion,  one  of  the  Se¬ 
cretaries,  who  flood  by  Mr.  Paine,  read  his  fpeech,  of 
which  the  following  is  a  literal  tranflation  : 

Citizens, 

The  effects  of  a  malignant  fever,  with  which  I  was 
afflicted  during  a  rigorous  confinement  in  the  Luxem¬ 
bourg,  have  thus  long  prevented  me  from  attending  at 
my  port  in  the  bofom  of  the  Convention,  and  the  mag¬ 
nitude  of  the  fubjeCt  under  difcuflion,  and  no  other 
confideration  on  earth,  could  induce  me  now  to  repair 
to  my  ftation. 

A  recurrence  to  the  viciflitudes  I  have  experienced,  and 
the  critical  fituations  in  which  I  have  been  placed  in  con- 
fequence  of  the  French  Revolution,  will  throw  upon 
what  I  now  propofe  to  fubmit  to  the  Convention,  the 
moft  unequivocal  proofs  of  my  integrity,  and  the  recti¬ 
tude  of  thofe  principles  which  have  uniformly  influenced 
my  conduCt. 

In  England  I  was  profcribed  for  having  vindicated 
the  French  Revolution,  and  I  have  fuffered  a  rigorous 
imprifonment  in  France  for  having  purfued  a  fimilar 

C  mode 


1 


(  34  ) 

inode  of  conduct.  During  the  reign  of  terrorifm,  I  was 
a  clofc  prifoner  for  eight  long  months,  and  remained  fa 
above  three  months  after  the  ?era  of  the  10th  Thermidor. 
I  ought,  however,  to  ftate,  that  I  was  not  perfecuted  by 
the  people  either  cf  England  or  France.  The  proceedings 
in  both  countries  were  theefreCts  of  the  defpotifm  exit¬ 
ing  in  their  refpective  governments.  But,  even  if  my 
perfecution  had  originated  in  the  people  at  large,  my 
principles  and  conduct  would  ftill  have  remained  the 
fame.  Principles  which  are  influenced  and  fubjeft  to  the 
controul  of  tyranny  have  not  their  foundation  in  the  heart. 

A  few  days  ago  I  tranfmitted  to  you,  by  the  ordinary 
mode  of  diliribution.  a  fhort  Treatife,  entitled.  “Difter- 
tation  on  the  Fir  ft  Principles  of  Government.”  This 
little  work  I  did  intend  to  have  dedicated  to  the  people 
of  Holland,  who,  about  the  time  I  began  to  write  it, 
were  determined  to  accomplifn  a  Revolution  in  their 
Government,— rather  than  to  the  people  oi  France,  who 
had  long  before  effected  that  glorious  objeCt.  But  there 
are,  in  the  Confutation  which  is  about  to  be  ratified  by 
the  Convention,  certain  articles,  and  in  the  report 
which  preceded  it,  certain  points,  fa  repugnant  to  rea- 
fon,  and  incompatible  with  the  true  principles  of  li¬ 
berty,  as  to  render  this  Treatife,  drawn  up  for  another 
purpofe,  applicable  to  the  prefent  occafion,  and  under 
this  impreftion  I  prefumed  to  fubmit  it  to  your  confide- 
ration. 

If  there  be  faults  in  the  Conftitution,  it  were  better 
to  expunge  them  now,  than  to  abide  the  e  >  nt  of  their 

jf  q 

mifehiievous  tendency  ;  for  certain  it  is,  that  the  plan 
of  the  Conftitution  which  has  been  prefented  to  you  is 
not  confident  with  the  grand  object  of  the  Revolution, 
nor  congenial  to  the  fentiments  cf  the  individuals  who 
accomplillied  it. 

To  deprive  half  the  people  in  a  nation  of  their  rights 
aS  citizens,  is  an  eafy  matter  in  theory  or  on  paper  :  but 
it  is  a  moft  dangerous  experiment,  and  rarely  practica¬ 
ble  in  the  execution. 


I  fhall 


(  35  ) 

I  {hall  now  proceed  to  the  obfervations  I  have 
offer  on  this  important  inbjecl ;  anct  i  pleuge  myfeix 
that  they  fhali  be  neither  numerous  nor  diffufive. 

In  my  appxehenhon,  a  conititution  emoraces  t.vo 
diftincb  parts  or  objects,  the  Principle  and  me  Prauue  * 
and  it  is  not  only  an  eifentia] ,  but  an  indifpenlabxe 
provifron,  that  the  practice  fnould  emanate  irom,  ami 
accord  with  trie  principle.  Now  i  maintain,  that  tne 
convene  of  this  propontion  is  tne  caie  in  the  pmn  O; 
the  Conftitution  under  diicu-iion.  The  firft  article, 
for  indance,  of  the  Political  State  of  Citizens, 
(v.  Title  II.  of  the  Cons titution)  lays, 

ec  Every  man  born  and  reiident  in  France,  who,  be¬ 
ing  twenty-one  years  ot  age,  has  inlcribed  his  name 
on  the  Civic  Regifter  of  his  Canton,  and  who  has  liv¬ 
ed  afterwards  one  year  on  the  territory  of  the  Repub¬ 
lic,  and  who  pays  any  diredt  contribution  wnatfoever, 
real  or  perfonai,  is  a  French  citizen. ” 

I  might  here  aik,  it  thole  only  who  come  unucr  tne 
above  defcription  are  to  be  confidered  as  citizens,  what 
defignation  do  you  mean  to  give  the  reft  of  the  people? 

1  allude  to  that  portion  of  the  people  on  whom  the 
principal  part  of  the  labour  falls,  and  on  whom  the 
weight  of  indirect  taxation  will  in  Uie  event  cnieliy 
prels.  In  the  ftrudture  of  the  iocial  fabric,  this  cluis 
of  people  are  infinitely  fuperior  to  that  privileged  order, 
whofe  oniy  qualification  is  their  wealth  or  territorial 
poffefiionl  For  what  is  trade  without  merchants  ? 
What  is  land  without  cultivation  ?  And  what  is  the 
produce  of  the  land  without  manuladturei  s  ?  Buc  to  re¬ 
turn  to  the  fubjecl.  ' 

In  the  fir  ft  place,  this  article  is  incompatiole  with 
the  three  firft  articles  of  the  Declaration  of  Rights, 
which  precede  the  Conftitutional  A  (ft. 

The  firft  article  of  the  Declaration  of  Rights  fays 
“  The  end  of  fociety  is  the  public  good  ;  and  the 
inftitution  of  government  is  to  fecure  to  e  very  individual 
the  enjoyment  of  his  rights.'’ 


* 


But 


(  36  ) 

Sut  the  article  of  the  Conftitution  to  which  I  have 
ju;l  adverted  propofes  as  the  objedl  of  fociety,  not 
the  public  good,  or  in  other  words,  the  good'  of  all , 
out  a  partial  good,  or  the  good  only  of  a  fe^w  y  and 
the  ConlHtution  provides  foiely  for  the  rights  of  this 
few,  to  the  exclulion  of  the  many. 

The  fecond  article  of  the  Declaration  of  Rights 

fays : — 

The  Rights  of  Man  in  fociety  are  Liberty,  Equa¬ 
lity,  Security  of  his  perfon  and  property.” 

But  the  article  alluded  to  in  the  Conftitution  has  a 
diredl  tendency  to  eftablifh  the  converfe  of  this  pofi- 
tion,  inafmuch  as  the  perfons  excluded  by  this  inequa¬ 
lity  can  neither  be  faid  to  poftefs  liberty,  nor  fecurity 
again  ft  oppreftion.  They  are  conftgned  totally  to  the 
caprice  and  tyranny  of  the  reft. 

1  he  third  article  of  the  Declaration  of  Rights  fays : — 
Liberty  confifts  in  fuch  adts  of  volition,  as  are  not 
injurious  to  others.” 

^  But  the  article  of  the  Conftitution,  on  which  I  have 
obferved,  breaks  down  this  barrier.  It  enables  the 
liberty  of  one  part  of  fociety  to  dellroy  the  freedom  of 
the  other. 

Having  thus  pointed  out  the  inconftftencv  of  this 
article  to  the  Declaration  of  Rights,  I  fhall  proceed  to 
comment  on  that  part  of  the  fame  article  which  makes 
a  diredt  contribution  a  neceftary  qualification  to  the 
right  of  citizenlhip. 

A  modern  refinement  on  the  objedt  of  public  revenue 
has  divided  the  taxes  or  contributions  into  tw  o  claffes, 
the  diredl  and  the  indirect,  without  being  able  to  define 
preciiely  the  diftindtion,  or  difference  between  them, 
became  the  effedl  of  both  is  the  fame. 

fhofe  are  defignated  indiredt  taxes  which  fall  upon 
the  confumers  of  certain  articles,  on  which  the  tax  is 
impofed,  became  the  tax  being  included  in  the  price, 
the  container  pays  it  without  taking  notice  of  it. 

I  he  lame  obfervation  is  applicable  to  the  territorial 
tax.  i  he  land  proprietors,  in  order  to  reimburfe  them- 

felves. 


(  37  ) 

felves,  will  rack-rent  their  tenants :  the  farmer,  of 
courfe,  will  transfer  the  obligation  to  the  miller,  by 
enhancing  the  price  of  grain ;  the  miller  to  the  baker, 
by  increahng  the  price  of  flour;  and  the  baker  to  the 
confirmer,  by  railing  the  price  of  bread.  The  territo¬ 
rial  tax,  therefore,  though  called  clired,  is  in  its  con- 
iequences  indirect . 

To  this  tax  the  land  proprietor  contributes  only  in 
proportion  to  the  quantity  of  bread  and  other  provi- 
iions  that  are  confumed  in  his  own  family.  The  deficit 
is  furniflied  by  the  great  mafs  of  the  community,  which 
comprehends  every  individual  of  the  nation. 

From  the  logical  diilinCtion  between  the  dirett  and 
indirect  taxation,  fome  emolument  may  refult,  I  allow, 
to  auditors  of  public  accounts,  &c.  but  to  the  people  at 
large  I  deny  that  fuch  a  diftinCtion  (which  by  the  by  is 
r  without  a  difference)  can  be  productive  of  any  practical 
benefit.  It  ought  not,  therefore,  to  be  admitted  as  a 
principle  in  the  conftitution. 

Beiides  this  objection,  the  provifion  in  queftion  does 
not  affect  to  define,  fecure,  or  eflabliih  the  right  of  citi- 
zenlhip.  It  conflgns  to  the  caprice  or  difcretion  of  the 
iegiflature  the  power  of  pronouncing  who  fhall,  or  fhall 
not,  exercife  the  functions  of  a  citizen ;  and  this  may 
be  done  effectually,  either  by  the  impofltion  of  a  direct 
or  indired  tax,  according  to  the  felfifh  views  of  the  le- 
giflators,  or  by  the  mode  of  collecting  the  taxes  fo  im- 
pofed. 

Neither  a  tenant  who  occupies  an  extenfive  farm,  nor 
a  merchant  or  manufacturer,  who  may  have  embarked 
a  large  capital  in  their  refpeCtive  purfuits,  can  ever, 
according  to  this  fyftem,  attain  the  pre-emption  of  a 
citizen.  On  the  other  hand,  any  upflart,  who  has  by 
iuccelfion  or  management,  got  poffeflion  of  a  few  acres 
of  land,  or  a  mifcrable  tenement,  may  exultingly  exer¬ 
cife  the  functions  of  a  citizen,  although  perhaps  he 
neither  poffefles  a  hundredth  part  of  the  worth  or  pro¬ 
perty  of  a  limple  mechanic,  nor  contributes  in  any  pro 
portion  to  the  exigencies  of  the  date. 


The 


(  3«  ) 

The  contempt  in  which,  the  old  government  held 
mercantile  pursuits,  and  the  obliquy  that  attached  on 
merchants  and  manufacturers,  contributed  not  a  little 
to  its  embarrafiments,  and  its  eventual  fubverfion  ;  and, 
ftrange  to  tell,  though  the  mifchiefs  arifing  from  this 
mode  of  condudt  are  i'o  obvious,  yet  an  article  is  pro- 
pofed  for  your  adoption,  which  has  a  manifeft  ten¬ 
dency  to  reftore  a  defedt  inherent  in  the  monarchy. 

I  {hall  now  proceed  to  the  fecond  article  of  the  lame 
title,  with  which  I  fhall  conclude  my  remarks. 

The  fecond  article  fays,  “  Every  French  foldier,  who 
fhall  have  ferved  one  or  more  campaigns  in  the  caufe  of 
liberty,  is  deemed  a  citizen  of  the  Republic,  without 
any  refpedt  or  reference  to  other  qualifications. ” 

It  fhould  feern,  that  in  this  Article,  the  Committee 
were  delirous  of  extricating  themfelves  from  a  dilemma 
into  which  they  had  been  plunged  by  the  preceding 
article.  When  men  depart  from  an  eftablifned  princi¬ 
ple,  they  are  compelled  to  refort  to  trick  and  fubter- 
fuge,  always  fhifting  their  means  to  preferve  the  uni¬ 
ty  of  their  objects  ;  and  as  it  rarely  happens  that  thf 
fir  it  expedient  makes  amends  for  the  proftitution  o; 
principle,  they  mult  cali  in  aid  a  fecond  of  a  more  fla 
grant  nature  to  fupply  the  deficiency  of  the  former 
In  this  manner  legislators  go  on  accumulating  error  upor 
error,  and  artifce  upon  artifice,  until  the  mafs  becomes 
fo  bulky  and  incongruous,  and  their  embarrafLnent  fc 
defpefate,  that  they  are  compelled,  as  their  laft  expe¬ 
dient,  to  refort  to  the  very  principle  they  had  vio¬ 
lated.— -The  Committee  were  precifely  in  this  predi¬ 
cament,  when  they  framed  this  article ;  and  to  me,  1 
confefs,  their  conduct  appears  fpecious  rather  than  effi¬ 
cacious. 

It  was  not  for  himfelf  alone,  but  for  his  family ,  tha 
the  French  citizen,  at  the  dawn  of  the  revolution  (foj 
then  indeed  every  manwasconi'idereda  citizen)  marcaec 
foldier-like  to  the  frontiers,  and  repelled  a  foreign  m 
vafion.  He  had  it  not  in  his  contemplation,  t oat  hi 
fhould  enjoy  liberty  for  the  refdue  of  his  earthly  ca 

ree: 


(  39  ) 

reer,  and  by  his  own  aft  preclude  his  offspring  from 
that  ineftimable  bleffing.  No  !  He  wilhed  to  leave  it 
as  an  inheritance  to  his  children,  and  that  they  might 
hand  it  down  to  their  lateft  pofterity.  If  a  Frenchman, 
who  united  in  his  perfon  the  character  of  a  Soldier  and 
a  Citizen,  was  now  to  return  from  the  army  to  his 
peaceful  habitation,  he  mull  addrefs  his  final  1  family 
in  this  manner : 

“  Sorry  I  am,  that  I  cannot  leave  to  you  a  fmall  por¬ 
tion  of  what  I  have  acquired  by  expofing  my  perfon  to 
the  ferocity  of  our  enemies,  and  defeating  their  machi¬ 
nations.  I  have  eftablilhed  the  republic,  and,  painful 
the  refteftion,  all  the  laurels  I  have  won  in  the  field 
are  blalled,  and  all  the  privileges  to  which  my  exertions 
have  entitled  me,  extend  not  beyond  the  period  of  my 
own  exigence  1”  Thus  the  meafure  that  has  been  adopted 
by  way  of  fubterfuge,  falls  fhort  of  what  the  framers 
of  it  fpeculated  upon  ;  for  in  conciliating  the  affeftions 
of  the  Soldier,  they  have  fubjefted  the  Father  to  the 
moll  pungent  fenfations,  by  obliging  him  to  adopt  a 
generation  of  Slaves. 

Citizens,  a  great  deal  has  been  urged  refpefting 
infurreftions.  I  am  confident  no  man  has  a  greater  ab¬ 
horrence  of  them  than  myfelf,  and  I  am  forry  that  any 
infinuations  fhould  have  been  thrown  out  upon  me  as  a 
promoter  of  violence  of  any  kind.  The  w'hole  tenor  of 
my  life  and  converfation  gives  the  lie  to  thofe  calumnies, 
and  proves  me  to  be  a  friend  to  order,  truth  and 
juftice. 

I  hope  you  will  attribute  this  effufion  of  my  feati- 
ments  to  my  anxiety  for  the  honor  and  fuccefs  of  the 
revolution.  I  have  no  interefl  diftinc’t  from  that  which 
has  a  tendency  to  meliorate  the  fituation  of  mankind. 
The  revolution,  as  far  as  it  refpefts  myfelf,  has  been 
productive  of  more  lofs  and  perfecution  than  it  is  pof- 
fible  for  me  to  defcribe,  or  for  you  to  indemnify.  But 
with  refpeft  to  the  fubjeft  under  confideration,  I  could 
not  refrain  from  declaring  my  fentimcnts. 

In  my  opinion,  if  you  fubvert  the  bafis  of  the  revo¬ 
lution. 


(  4°  ) 

lution,  if  you  difpenfe  with  principles,  and  fubflitute 
expedients,  you  will  extinguifh  that  enthufiafin  and 
energy  which  have  hitherto  been  the  life  and  foul  of 
the  revolution  ;  and  you  will  fublKtute  in  its  place 
nothing  but  a  cold  indifference  and  felf-intereft,  which 
will  again  degenerate  into  intrigue,  cunning,  and 
effeminacy. 

But  to  diicard  all  confederations  of  a  perfonal  and 
fubordinate  nature,  it  is  effential  to  the  well-being  of 
the  republic,  that  the  practical  or  organic  part  of  the 
conflitution  fhould  correfpond  with  its  principles ; 
and  as  this  does  not  appear  to  be  the  cafe  in  the  plan 
that  has  been  prefented  to  you,  it  is  abfolutely  necefiary 
that  it  fhould  be  fubmitted  to  the  revifion  of  a  com¬ 
mittee,  who  fhould  be  inftrutted  to  compare  it  with  the 
Declaration  of  Rights,  in  order  to  afcertain  the  differ¬ 
ence  between  the  two,  and  to  make  fuch  alterations  as 
fhall  render  them,  perfe&ly  confiftent  and  compatible 
with  each  other. 


- 

. 


,  I  S 


m 


'  I 


* 


A 


THE 


TRIAL 

O  F 

Qilcjeantscv  Stfctsison,  SESa* 

» 

PRESIDENT  OF  THE  COURTS  OF  COMMON  PLEAS,  IN  THE 
CIRCUIT  CONSISTING  OF  THE  COUNTIES  OF  WEST¬ 
MORELAND,  FAYETTE,  WASHINGTON  AND  ALLEG¬ 
HENY, 

ON  AN  IMPEACHMENT, 

BY  THE  HOUSE  OF  REPRESENTATIVES, 

BEFORE  THE  SENATE  OF  THE  COMMONWEALTH 

OF  PENNSTLFANIA. 

'TAKEN  IN  SHORT  HAND  BY 

THOMAS  LLOYD. 


Second  edition,  with  additions. 


LANCASTER: 

Pr.ntd  by  GEORGE  HELMBOLD,  jun.or, 
for  LLOYD  and  HELMBOLD,  jun. 

1803. 

r Copy-right  fecund*} 


2  Bac .  i6‘o. 


JUSTICES  of  the  peace,  in  their  feffions,  have  no  jurifdic- 
+9  tion  one  over  the  other,  according  to  that  rule  inter  pares 
non  ejl  potejias  :  therefore  they  cannot  amerce  a  juftice  for  his 
non-attendance,  nor  bind  a  brother  juftice  to  his  good  behavior 
"or  uling  fucli  expreflions  in  court,  for  which,  if  he  were  a  pri- 
'•ate  perfoii,  lit  might  be  committed,  or  bound  to  his  good  be¬ 
havior. 

[B.] 

Chriftian’s  Notes  on  Blackftone,  57 1. 

In  the  houfe  of  commons  the  fpeaker  never  votes  but  \vheh 
'here  is  an  equality  without  liis  calling  vote,  which  in  that  cafe 
creates  a  majority  ;  but  the  fpeaker  of  the  houfe  of  lords  has 
no  calling  vote,  but  his  vote  is  counted  with  the  reft  of  the 
houfe  ;  and  in  the  cafe  of  an  equality,  the  non-contents  or  ne¬ 
gative  voices  have  the  fame  effedl  and  operation  as  if  they  were 
in  fa&  a  majority.  (Lords’  Jcurn.  2rth  June,  1661.)  Lord 
Mountmorris  fays,  that  the  houfe  of  lords  in  Ireland  obferve 
the  fame  rule  ;  and  that  in  cafes  of  equality,  femper  prafumitur 
pro  negante.  (1  vol.  105.)  Hence  the  order  in  putting  the 
queftion  on  appeals  and  writs  of  error  is  this :  “  Is  it  your 
•ordfhip’s  pleasure  that  this  decree  or  judgment  fhell  be  reverf- 
td  for  if  the  votes  are  equal,  the  judgment  of  the  court 
below  is  affirmed.  (Ib.  2  vol.  Fi.)  Here  it  may  not  be  im¬ 
proper  to  obferve,  that  there  is  no  cafting  voice  in  courts  of 
juftice;  but  in  the  fuperior  courts  if  the  judges  are  equally 
divided,  there  is  no  decifion,  and  the  caufe. is. continued  in  court 
till  a  majority  concur.  At  the  feffions  the  juftices,  in  cafe 
of  equality,  ought  to  refpite  the  matter  till  the  next  feffion  ; 
hut  if  they  are  equal  one  day,  and  the  matter  is  duly 
brought  before  them  on  another  day  in  the  fame  feffions — . 
and  if  there  is  then  an  inequality,  it  will  amount  to  a  judg¬ 
ment,  for  all  the  time  of  the  feffions  is  corffidered  as  but  one 
day.  A  cafting  vote  fometimes  fignifies  the  fmgle  vote  of  a 
perfon,  who  never  votes  but  in  the  cafe  of  an  equality  ;  fome- 

I 


I 


2 


APPENDIX. 


times  the  double  vote  of  a  perfon,  who  firfl.  votes  with  the 
reft,  and  then,  upon  an  equality,  creates  a  majority  by  giving' 
a  fecond  vote. 

[C.] 

4  Burns,  184,  1 5 th  edition. 

It  feemeth  certain,  that  the  fefiions  hath  no  authority  to 
amerce  any  juftice,  for  his  non-attendance  at  the  fefiions,  as  the 
judges,  of  aflize  rnay,  for  the  abfence  of  any  fuch  juftice  at  the 
gaol  delivery  :  for  it  is  a  general  rule,  that  inter  pares  non  ejl 
potejlas ,  it  being  reafonable  rather  to  refer  the  punifhment  of 
of  perfons  in  a  judicial  office,  in  relation  to  their  behavior  in 
fuch  office,  to  other  judges  of  <L  fuperior  ftation,  than  to  thofe 
of  the  fame  rank  with  themfelves.  And  therefore  it  feems  to 
have  been  holden,  that  if  a  juftice  of  the  fefiions,  who  is  not 
of  the  quorum  fhall  ufe  fuch  expreffions  towards  another  who 
is  of  the  quorum,  for  which  if  he  were  a  private  perfon  he 
might  be  committed  or  bound  to  his  good  behavior,  yet  the 
fefiions  hath  no  authority  to  commit  him,  of  to  bind  him  to  his 
good  behavior  And  yet  it  feems  to  be  agreed,  that  if  a  juf¬ 
tice  give  juft  caufe  to  any  perfon  to  demand  the  furety  of  the 
peace  againft  him,  he  may  be  compelled  by  any  other  juftice 
to  find  fuch  fecurity  ;  for  the  public  peace  requires  an  im¬ 
mediate  remedy  in  all  fuch  cafes.  .  , 

[i>-] 

Proffer's  cafe ,  12  Cooh ,  Rep.  118. 

In  an  information  preferred  in  the  Star  Chamber  by  the  at*’ 
torney-general,  againft  Stephen  Procter,  Berkenhead  and  others,; 
for  fcandal  and  confpiracy  of  the  earl  of  Northampton,  and 
the  lord  Wooton.  At  the  hearing  of  this  cafe,  were  prcfentT 
eight  lords,  Scil  the  chief  baron,  the  two  chief  juftrees,  two 
bifhops,  one  baron,  the  chancellor  of  the  exchequer,  and  the 
lord  chancellor.  And  the  three  chief  juftrees  and  the  tempo¬ 
ral  barons  condemned  fir  Stephen  Procter,  and  fined  and  im- 
prifoned  him  :  but  the  lord  chancellor,  the  two  bifhops  and  the 
chancellor  of  the  exchequer  acquitted  him.  And  the  quef- 
t:on  was,  if  fir  Stephen  Prodler  fhall  be  condemned  or  acquit¬ 
ted  ;  and  it  feemed  to  fome  of  the  clerks,  prima  facie ,  that 
the  better  fhall  be  taken  for  the  kins-,  and  that  he  fhall  he 

O  7 

condemned.  But  others  were  of  the  contrary  opinion,  and 
hereupon  the  matter  was  referred  to  the  two  chief  juftices, 
calling  to  their  affiftance  the  king’s  learned  counfel.  And  firfl 
they  refolved  that  this  quell  ion  mult  be  determined  by  the  pre¬ 
cedents  of  the  court  of  Star  Chamber,  for  that  court  is  againft 
the  rule  and  order  of  all  other  courts,  for  in  the  king’s  bench, 


APPENDIX. 


3 


tl^e  common  pleas,  or  the  exchequer,  or  in  the  exchequer 
chamber,  where  all  the  juftices  are  affembled,  if  the  juftices 
are  equally  divided,  no  judgment  can  be  given  ;  and  fo  it  is 
in  the  court  of  parliament ;  and,  therefore,  this  courfe  ought 
to  be  warranted  by  the  cuftom  of  the  court.  And  as  to  that, 
two  precedents  only  were  produced  for  the  maintenance  of  the 
faid  cuftom,  viz;  one  in  the  Hillary  term,  30,  El.  between  Gib- 
fon,  plaintiff,  Griffith  and  others,  defendants  :  where  the  com¬ 
plaint  was  for  a  riot,  and  at  the  hearing  of  the  cafe,  there  were  8 
prefent ;  four  gave  their  judgments  that  the  defendants  were 
guilty  :  but  the  other  four,  whereof  the  lord  chancellor  was 
one,  pronounced  the  defendants  not  guilty,  and  no  fentence  of 
condemnation  was  ever  entered,  becaufe  the  lord  chancellor 
was  one  of  the  four  who  acquitted  them.  The  other  was  Hill. 
45.  Eliz.  in  an  information  by  the  attorney-general  againft 
Catharine  and  others,  for  forging  of  a  will,  and  a  mifdemeanor 
for  procuring  a  fraudulent  deed  to  defeat  the  queen  of  her 
efcheat :  And  eight  were  in  prefence  in  the  hearing  of  the 
caufe,  whereof  four  found  the  defendants  guilty  of  forgery, 
and  did  inflidl  the  punifnment  according  to  the  ftatute  of  the 
5  Eliz.  but  the  others,  whereof  the  lord  chancellor  was  one, 
gave  fentence  that  the  defendants  were  guilty  of  the  mifde¬ 
meanor,  and  not  of  the  forgery,  and  impofed  a  fine  of  £.5 00 
only  ;  which  decree  was  entered  according  to  the  lord  chan¬ 
cellor’s  voice,  although  the  fentence  on  the  other  fide  was 
more  beneficial  for  the  king  ;  and  no  other  precedent  could 
be  found  in  this  cafe,  the  which  I  have  reported  this  term. 

[E.] 

State  Trials ,  p.  168.  Fifczharris’  cafe. 

After  the  arguments,  the  chief  juftice,  in  fhow,  at  leaft, 
'very  favorably,  offers  the  prifoner’s  counfel  liberty  to  amend  the 
plea,  if  they  could  ;  which  they  (apprehending  as  they  had 
reafon,  for  I  think  none  can  (hew  how  it  might  have  been 
mended,  rather  a  catch  than  a  favor)  refufed  to  do  ;  where¬ 
upon  the  court  took  time  to  confider  of  it;  and  on  the  11th 
of  May,  there  being  a  great  auditory,  rather  to  hear  how  the 
judges  would  bring  themfelves  off,  than  to  know  what  the  law 
of  the  plea  was,  the  chief  juftice,  without  any  reafons,  deli¬ 
vered  the  opinion  of  the  court,  upon  conference  had  with 
other  judges,  that  his  brothers  Jones,  Raymond  and  himfelf, 
were  of  opinion  that  the  plea  was  infufficient ;  his  brother 
Dolbgn  not  refolved,  but  doubting  concerning  it,  and  therefore 
awarded  the  orifoner  fhould  olead  to  the  indi&ment,  which  he 
did,  not  guilty  ;  and  his  trial  ordered  to  be  the  next  term. 


4 


APPENDIX. 


I  think  it  would  puzzle  any  perfon  to  {hew,  if  ever  a  court 
ox  Weftminfter-Hall  thought  a  matter  to  be  of  fuch  difficul¬ 
ty,  as  fit  to  be  argued,  that  they  gave  their  judgments  after¬ 
wards  without  the  reafons  :  ’Tis  true,  that  the  courts  of  civil 
law  allow  debates  amongft  the  judges  to  be  private  among  them- 
felves  i  but  the  proceedings  at  common  law  always  were,  and 
ought  to  be,  in  o. pert  a  curia.  Had  this  praClice  taken  place 
here valor  ,  as  it  hath  of  late  (but  all  f  ace  this  precedent)  no 
man  could  have  known  what  the  law  of  England  was,  for  the 
yearbooks  arc!  reports  are  nothing  but  a  relation  of  what  is 
laid  by  the  counlel  and  judges  in  giving  judgment,  and  con¬ 
tain  the  reafons  of  the  judgment,  which  are  rarely  expreffed  in 
the  reco  d  of  the  judgment  ;  and  it  is  as  much  the  duty  of  a 
judge  to  give  the  reafons  why  he  doubts,  as  it  is  of  him  who  is 
fatisfied  in  the  judgment.  Men  fometimes  will  be  afhamed  to 
offer  thofc  reafons  in  public,  which  they  may  pretend,  fatisfy 
them,  if  concealed  ;  befides,  we  have  a  maxim  in  law  undeni¬ 
able,  and  of  great  ufe,  that  any  perfon  whatever  may  rectify 
or  inform  a  court  or  judge  publicly  or  privately,  as.  amicus,  cu- 
rice ,  a  friend  to  the  court,  or  a  friend  to  juft  ice  :  But  can 
that  be  done,  if  the  ftandeis-by  know  not  the  reafon  upon 
which  the  court  pronounce  their  judgment  ?  Had  the  three 
jud  ;cs,  who  were  clear  in  their  opinion,  given  their  reafons 
of  that  opinion,  perhaps  fomc  of  the  ftanders-by  might  have 
ihewed  reafons  unthought  of  by  them,  to  have  made  them  ftag- 
ger  in,  if  net  alter  that  opinion  ;  or  if  juftice  Dolben  had 
given  the  reafon  of  his  doubt,  pernaps  a  ftander-by  might  have 
(hewn  him  a  reafon,  unthought  of  by  him,  which  would  have 
made  him  pofitivc  that  the  plea  was  or  was  not  a  good  plea, 

[F-] 

EunoiTius ,  3  vd.  Dial.  229,  230. 


But,  fecondly  ;  in  the  courfe  and  management  of  a  trial, 
other  perfons  are  likewife  under  an  oath,  and  have  their  duties  in¬ 
cumbent  on  them  alfo.  Now,  without  looking  into  the  oath  of  a 
pudge,  it  vvill  be  ealily  underllood  to  be  inconfiftent  with  his 


duty  ami  lus  oath,  to  be  a  mere  cypher  on  the  bench  ;  a  judge, 
however,  will  be  little  more  than  a  cypher,  either  if  he  fits 
and  fays  nothing,  or  if  what  he  does  fay  is  to  go  for  nothing. 
I  have  already  infilled,  the  jury’s  unacqnamtance  with  law,  makes 
it  neceftary  for  thf  judge  to  tell  them  what  the  law  is,  in  the 
cafe  before  them.  He  tells  it  them  furely  to  very  little  pur- 
pole,  ii  they  think  thernfclves  afterwards  at  liberty  to  deter¬ 
mine  otherwife. 


APPENDIX. 


Cicptijiiicii  cy  ihs  '-'~y ) 


[G.] 


Refuming  thofe  judical  duties  which  on  a  former  occafion 
i  :mve  been  prevented  to  difcharge,  under  the  exifting  circum- 

.  ^IlCi  ^  incumbent  upon  me  to  offer  you  now  a  few 
opiervations. 

.  That  ‘hf ,  P°"'ers  Which  you  are  vetted  with,  as  the  grand 
inqaeu  o.  ^Legheny  county,  are  ex  ten  five  and  tranicer.dantv 
is  a  truth  which  every  one  of  you  cannot  be  ignorant  of:  that 

1:1  the  iyerc,.‘e  of  tllcfc  powers,  a  fpacious  fphere  is  allowed  to 
your  difcretion,  mult  be  equally  well  known.—Your  country 
leave  to  your  confidence  and  your  judgment,  under  the  guid. 
ance  or  the  law  and  abided  with  the  direction  of  the  court 
to  enquire  and  fearch  into  all  and  every  infringement  of  the 
.2V.S  ;  *i.cew;ie  to  prefeat  or  find  bills  againft  any  body  you 
>1  have  remon  to  'eheve  to  be  a  public  offender  or  tranfmeffor 
without  refpeSl  of  perfons,  and  againft  none  but  thofe  “whom 
you  oeheyc  to  have  tranfgreffed. 

Unfortunately,  experience  teaches  us,  that  with  men  in  general, 
pafijons  take  often  the  lead  of  duties  ;  there  are  but  a  Few  in- 
formers,  indeed,  that  hep  forward  merely ,  from  a  genuine  fen fe 
°-  outy  ’  Na  .  P31^1  Ci  vengeance  or  of  party  (the  general  caufes 
ordinance)  is  orten  at  the  bottom  of  the  denunciation,  b 
behoves  a  good  jury  to  uie  all  the  fagacity  they  are  poffcffed  of, 
in  attending  and  weighing  all  circumftances  ;  likewife  in  dif- 
fingmfhmg  between  the  witneOes  that  deferve  credibility,  and 
If  o  e  that  deferye  none  ;  for,  if  it  is  highly  important  that  the 
;nan igreffors  fhould  not  efcape,  it  would  be  lamentable  indeed, 
‘homd  an  innocent  and  perhaps  an  indigent  man  fall  a  victim  to 
1  vexatious  prevention.  Thus,  gentlemen,  your  good  fenfc 
.  upnghtnefs  leads  me  to  confider  you  under  two  points  of 
new  ;  that  is  as  a  body  of  fagacious  men,  to  whole  vigilance 
icme  that  are  guilty  of  crimes  or  mifdemeanors  will  efcape,  and 
is  an  afvlam  and  fandtuaTy  for  the  innocent  and  perfecuted. 

I  make  no  doubt,  but  you  know  as  well  as  me,  that  a  virtuous 

nd  an  honePc  juror  being  confcious  of  the  foibles  attending  hu- 

n  in  nature,  and  of  the  facrednefs  of  the  obligations  be  hands 

P  ei  u  ,t  refpect  to  his  God  and  his  country,  never  omits  to 

j.rutmizc  into  his  heart  and  difpel  from  it,  all  noxious  pafiions 

Mat  may  have  crept  in,  and  reftore  himfelf  to  that  equanimity 

,  Cve"ne„sof  deling,  the  true  and  only  ftandard  to  try  the 
calcs  of  juftice  by. 


APPENDIX. 


In  vain  the  wife  legiflators  would  exhauft  the  treafures  os 
meditation  and  experience,  in  framing  the  moll  wholefome  laws, 
without  the  uprightnefs  of  the  judiciary  to  carry  a  pure  fub- 
ftance  through  their  channel  ;  they  would  not  be  more  ufeful 
than  lofty  ft?cks  of  wheat  offering  the  appearance  of  long  ears, 
but  beino-  a&ually  blafted  in  their  bloffoms  and  containing  no 
grain.  Thus  all  fubftantial  liberty,  and  all  the  bleffings  that 
flow  from  it  ;  refting  almoft  entirely  upon  the  purity  of  the 
judiciary.  Every  care  ought  to  be  taken,  every  endeavour  ought 
to  be  exerted,  to  cultivate  and  improve  the  calmnefs,  the  libera¬ 
lity,  the  mutual  confidence  of  judges  and  jurors. 

God  forbid  that  1  fhould  ever  attempt  to  throw  the  alarm 
amongft  you,  or  difturb  your  feelings  in  the  leaft  by  ufelefs  de¬ 
nunciations  ;  fhould  the  illuminees  of  Germany  and  jacobins  ot 
France  be  as  dangerous  to  the  focieties  they  live  in,  or  as 
wickedly  bent  upon  deftroying  or  undermining  every  civil  and 
religious  inftitution,  as  they  have  been  reprefented  to  be  by 
Barruel  the  jefuit,  and  others.  What  could  I  poffibly  tell  you 
on  the  fubjedt,  preferving  my  official  capacity  ?  What  could  a 
jury  of  Allegheny  do  about  thefe  things  ?  Have  not  thele 
countries  their  own  laws,  and  magiftrates  ?  Have  we  any  jurif- 
diaion  over  them '?  For  my  part,  I  cannot  expofe  myfelfio 
much  as  to  forget  that  I  ftand  here  as  a  judge,  and  not  as  a 
fpeculatitt  or  hiftorian  ?  that  this  prefent  time  is  at  the  flifpoial 
of  the  laws,  and  not  at  that  of  my  fancy  or  imagination.  God 
forbid,  above  all,  that  I  fhould  Angle  out  any  fetofmen  among 
fellow-citizens,  and  infmuate  that  they  are  a  ramification  of  fuch 
German  and  French  illuminees  and  jacobins,  and  that  the  mean 
courfe  of  the  laft  general  ele&ion  throughout  the  United  States, 
evinces  that  this  ramification  is  growing  powerful  and  influen¬ 
tial. 

As  the  barbarous  and  gothic  fyftem  of  divifion  of  nations 
into  calls,  is  happily  unknown  tp  the  conftitutions  of  our  coun¬ 
try  ;  as  we  have  no  ambitious  and  privileged  nobilit) ,  noi  a 
proud  and  corrupt  clergy,  armed  with  an  undue  tempora  au¬ 
thority,  to  encounter  with,  to  refill,  or  to  crulh  :  fo  we  ia\e 
no  reafon  to  form  ourfelves  into  alfociations  agamll  eac  i 
other:  Our  laws,  our  government,  hold  up  all  and  every  one 
of  us  into  their  bofoms,  with  an  equal  tendeinefs  and  care. 
In  fuch  fociety  as  ours  is,  every  thing  leads  towards  union  an 
mutual  friendlhip  ;  here  the  philofopher,  far  from  being  at  \a 
riance  wuth  the  clergyman,  fupports  and  refpefts  him;  an 
both  purfue  ultimately  the  fame  objedl,  that  is,  the  happme  s 
of  mankind.  If  we  are  divided  in  opinion  upon  an)  po  ltic 


appendix. 


P™H.S>  "■  cannot  rationally  be  upon  fuch  that  are  of  confider- 
abfc  importance.  Therefore  if  party  fpirit  exifts  In  this  coun- 
tij,  it  cannot  be  of  an  alarming  nature,  and  never  ought  to 
go  to  trie  length  of  rancor  and  illiberally. 

1  confefs  that  1  have  read  very  little  of  Barruel’s  hiftory  of 
the  jacobins  and  illummees  ;  nay,  I  do  not  wifti  to  read  more 
ox  ic  ;  I  know  too  well  that  impartiality  and  accuracy  is  fel- 
ji°pm  r°u  C  °umi  in  an  hihory  written  by  an  exile,  in  the  mid- 
d  e  of  the  conflift  oi  the  mod  violent  parties  ever  heard  of. 

1  have  indeed  a  particular  reafon  to  repofe  but  a  very  little 
confidence  m  Jefuits,  efpecially  as  hiftorians.  I  recoiled  that 
m  the  early  part  of  my  life,  I  did  read  the  hiftory  of  Charles 
;  England,  written  by  another  French  Jefuit.  Had  I 
tr uited  to  his  account,  I  fhould  have  believed  that  the  cove- 
nan  ter  s  of  Scotland  were  as  bad  and  dangerous  men  as  Bar- 
icu  could  ever  reprefent  the  illuminees  of  his  imagination.  Had 

that’ T  U lC  PartlCS  t0  3  jmj>  1  Could  not  he]P  thinking 
that  1  have  perverted  the  ufe  of  judicial  power  to  a 

Wronf  a;id  dangerous  end.  It  is  with  deep  regret  that  I  have 

now  fpoke  upon  the  topic  of  parties  j  it  is  not  from  choice, 

u.  rom  necc.fiity  ;  not  to  act,  but  to  counteract. 

May  this  circumftance  be  the  only  one  in  my  life  wherein  I 
feel  myfclf  under  the  obligation  of  addrefiing  a  jury,  uoon  fo 
delicate  and  perplexing  a  iubjeft.  A 

[H.] 

Fitzharris' s  cafe.  Vide  State  Trials ,  ed.  0/173  7,  W.  I ,  p.  404. 

Edward  Fitzharris,  being  committed  for  a  treafonable  libel, 
reipeCting  the  king  and  government,  on  the  28th  of  Febru- 

7’  '7’^  t.he  Parliament  meeting  at  Oxford  on  the  2  lit 
o  March  following,  the  commons  impeached  Fitzharris,  of 
Mgh  treafon,  in  general  terms  :  But  the  lords  finding  no  rea- 
ion  for  this  extraordinary  way  of  proceeding,  when  he  might 
"f  TCdw,  the  ordlnary  courts  of  law,  rejefted  the  impeach-- 
J  the  commons  refolved,  that  it  was  the  un- 

ou.  e  rig  t  o  the  commons  to  impeach  any  peer  or  com¬ 
moner  before  the  lords  ;  and  that  the  lords  refufing  to  proceed 
on  t  is  impeachment  of  Fitzharris,  was  d  denial  of  jullice, 
and  a  Ration  of  the  conftitution  of  parliament  ;  an  obftruc- 
tmn  to  the  further  difeovery  of  the  plot,  and  of  great  danger 
o  ins  majefty  s  perfon,  and  the  Proteftant  religion  :  And  that 
f  any  inferior  court  fliould  proceed  againft  Edwaid  Fitzharris, 

V  1Cr  Pe[fon’  llnder  an.  impeachment  of  parlia¬ 

ment,  It  would  be  a  high  breach  of  privilege :  But  the  king 


$ 


APr£lSIDliC. 


r» 

tiiuolving  the  parliament  the  fame  day,  being  tne  2Sth  o> 
Maich,  1 68 1 ,  the  minidry  directed  Fitzharris  to  be  tried  a? 

the  king’s  bench  bar. 

r-  — 

L±J 

If  (jochlrfoii'i  596. 

it  is  certain  that  magidrates  and  officers  entrufted  with  the 
adminiftration  of  public  affairs  may  abufe,  their  delegated  pow¬ 
ers  to  the  exteufive  detriment  of  the  community,  ^  and  at. 
the  fame  time  in  a  manner  not  properly  cognizable  before  the 
ordinary  tribunals.  The  influence  of  fuch  delinquents,  anu 
the  nature  of  fuch  offences,  may  not  unfuitably  engage  the  au¬ 
thority  of  the  higlied  court,  and  the  wifdom  of  the  iageit 
affembly.  The  commons,  therefore,  as  the  grand  inqueft  of 
the  nation,  became  fuitors  for  penal  judice  ;  and  they  cannot 
confidently  either  with  their  own  dignity,  or  with  lafety  to 
the  accufed,  fue  elfewhere  but  to  thofe  who  ffiare  with  them 
in  the  lernnature. 

O 

On  this  policy  is  founded  the  origin  of  impeaenments. 

IVooadefon ,  601-2. 

All  the  king’s  fubje&s  are  impeachable  in  parliament,  but 
with  this  diftindion,  that  a  peer  may  be  fo  accufed.  before  his 
peers  of  any  crime,  a  commoner  (though  perhaps  it  was  for¬ 
merly  otherwife)  can  now  be  charged  with  miideineanoiS  oni} , 
not  with  any  capital  offence  ;  for  when  Fitzharris,  in  the  year. 
3681,'  was  impeached  of  nigh  treafon,  the  ‘Olds  lernitteo  tuv 
profecution  to  the  inferior  court,  though  it  greatly  exafperated 
the  accufers.  Such  kinds  of  mifdeeds  as  peculiarly  injure  the 
commonwealth  by  the  abufe  of  high  offices  or  trull,  me  the 
mod  proper  and  have  been  the  mod  ufual  grounds  for  this 
kind  of  profecutibn.  Thus,  if  a  lord  chancellor  be  guilty  ot 
bribery,  or  of  acting  grofsly  contrary  to  the  duty  of  his  01- 
flee,  if  the  judges  millead  their  fovercign  by  unconiututional 
opinions,  if  any  other  magistrate  attempts  to  fuDvert  tne  fnuua- 
mental  laws,  or  introduce  arbitrary  power,  thefe  have  beeit 
deemed  cafes  adapted  to  parliamentary  enquiry  and  deciiion. 
So  where  a  lord  chancellor  has  been  thought  to  nave  pm  the 
leal  to  an  ignominious  treaty,  a  lord  admiral  to  neglect  tnd 
fafeguard  of  the  fea,  an  ambalfador  to  betray  his  trim,  a 
privy  counfellor  to  propound  or  fupport  pernicious  anu  ciiflin-j 
norable  meafures,  or  a  confidential  adviier  of  his  fovereign  to 
obtain  exorbitant  grants  or  incompatible  employments,  ihele 
imputations  have  properly  occafioned  impeaenments,  Lecanie 


APPENDIX; 


9 


'»  1 

is  apparent  how  little  the  ordinary  tribunals  are  calculated  to 
take  cognizance  of  fuch  offences,  or  to  invefligate  and  reform 
the  general  policy  of  the  ftate. 

[JO 

. 

Com.  Dig.  tit.  pari.  let.  L.  37. 

Lord  Bacon,  chancellor,  was  impeached  for  bribery. 

The  duke  of  Buckingham  for  the  fate  and  purchafe  of  of¬ 
fices. 

The  lord  Findi  for  unlawful  methods  of  enlarging  the  fo- 
refl  when  affiftant  to  the  juftices  in  Eyre. 

For  threatening  other  judges  to  fubfcribe  to  his  opinion  : 

For  delivering  opinions  which  he  knew  to  be  contrary  to 
law : 

For  drawing  the  bufinefs  of  the  court  to  his  chamber. 

The  fourth,  fifth  and  fixtli  articles  againfl;  lord  keeper  Finch, 
were  as  follow : 

i 

4.  That  being  chief  juftice  of  the  common  pleas,  in  the 
year  1635,  he  drew  up  the  queftions  and  opinions  concerning 
fhip-money,  and  folicited  and  procured  the  judges  to  fign  them. 

5.  That  he  fubfcribed  an  extra-judicial  opinion  relating  to 
fhip-money  himfelf,  and  prefTed  the  jultices  Crooke  and  Hut¬ 
ton  to  fign  them  againfl;  their  confciences; 

6.  That  he  delivered  his  opinion  againfl  Mr.  Hampden  in 
the  exchequer  chamber,  in  the  cafe  of  fhip-money,  and  threat¬ 
ened  the  faid  judges,  to  induce  them  to  deliver  the  like  opinion, 
and  urged  baron  Denham  to  retratl  the  opinion  he  had  given 
for  Mr.  Hampden. 

[K-] 

The  report  of  the  committee  of  the  houfe  of  commons  ap¬ 
pointed  to  examine  the  proceedings  of  the  judges,  made 

December  23,  1680.  32.  Car.  2. 

This  committee  being  informed,  that  in  trinity  term  laft,  the 
court  of  king’s  bench  difenarged  the  grand  jury  that  ferved 
for  the  hundred  of  Offulflon,  in  the  county  of  Middlefex,  in 
a  very  unufual  manner  ;  proceeded  to  enquire  into  the  fame, 
and  found  by  the  information  of  Charles  Urn, Seville,  Efq.  a 
foreman  of  the  faid  jury,  Edward  Proby,  Henry  Gerard  and 

Z 


IO 


APPENDIX. 


John  Smith,  gentlemen,  alfo  of  the  faid  jury  ;  that  on  the  2 lit 
of  June  laft  the  conftables  attending  the  faid  jury  were  found  de- 
fed  ive  in  not  prefenting  the  Papifts  as  they  ought,  and  there¬ 
upon  were  ordered  by  the  faid  jury  to  make  further  prefent- 
ments  cf  them  on  the  26th  following,  on  which  day  the  jury 
met  for  that  purpofe,  when  feveral  peers  of  this  realm,  and 
other  perfons  of  honor  and  quality,  brought  them  a  bill  againlt 
James,  duke  of  York,  for  not  coming  to  church  :  But  fome 
exceptions  being  taken  to  that  bill,  in  that  it  did  not  fet  forth 
the  faid  duke  to  be  a  Papift.  Some  of  the  jury  attended  the 
faid  perfons  of  quality,  to  receive  fatisfa&ion  therein  ;  in  the 
mean  time,  and  about  an  hour  after  they  had  received  the  faid 
bill,  fome  of  the  jury  attended  the  court  of  king’s  bench  with 
a  petition,  which  they  defired  the  court  to  prefent  in  their 
name  unto  his  majelly  for  the  fitting  of  this  parliament.  Upon 
which  the  lord  chief  juftice  Scroggs  raifed  many  fcruples.  And 
on  pretence  that  they  were  not  all  in  court,  (though  twenty  of 
the  jury  had  fubfcribed  the  petition)  fent  for  them,  faying  they 
would  difpatch  them  pa-efently.  The  jury  being  come,  and 
their  names  called  over,  they  renewed  their  delire  that  the  court 
would  prefent  their  petition  :  But  the  chief  juftice  alked,  if 
they  had  any  bills.  They  anfwered  they  had  ;  but  the  clerks 
were  drawing  them  into  form.  Upon  which  the  chief  juftice 
faid  they  would  not  make  two  works  of  one  bufinefs ;  and  the 
petition  being  read,  he  faid,  This  was  no  article  of  their 
charge,  nor  was  there  any  a&  of  parliament  that  required  the 
court  to  deliver  the  grand  jury’s  petition  ;  that  there  was  a 
proclamation  about  them,  and  that  it  was  not  reafonable  the 
court  Ihould  be  obliged  to  run  on  their  errands,  and  he  thought  . 
it  much,  that  they  Ihould  come  with  a  petition  to  alter  the 
king’s  mind  declared  in  the  news  book.  The  jury  faid,  they 
dia&it  not  to  impofe  on  the  court,  (but  as  other  juries  had 
done)  with  all  fubmiffion  they  defired  it.  But  the  court  re- 
fufed  bidding  the  crier  return  them  their  petition  :  And  Mr. 
juftice  Jones  told  them,  they  had  meddled  with  matters  of  ftate 
not  given  them  in  charge  ;  but  prefented  no  bills  of  the  mat¬ 
ter?  given  in  charge.  They  anfwered  as  before.  They  had 
many  before  them  that  would  be  ready  in  due  time.  Not- 
withftandiiig  which,  the  faid  juftice  Jones  told  them,  they 
were  difeharged  from  further  h  r  v  ice. 

But  Philip  Ward  (the  clerk  that  attended  the  faid  jury) 
cried  out,  no,  iy> ;  they  have  many  bills  before  them,  for  which 
the  court  underftanding  (as  it  feems  to  this  committee),  a  fe- 
eret  reafon  which  the  clerk  did  not,  reproved  him,  alking,  if 


APPENDIX. 


u 


he  or  they  were  to  give  the  rule  there.  The  crier  then  told 
the  court  they  would  not  receive  their  petition  ;  the  chief  juf- 
tiee  bid  him  let  it  alone  ;  fo  it  was  left  there,  and  the  jury  re¬ 
turned  to  the  court-houfe,  and  there  found  feveral  couftables 
with  preferments  of  Papifts  and  other  offenders,  as  the  jury 
had  directed  them  on  the  2 1  it  before  ;  but  could  not  now  re¬ 
ceive  the  faid  preferments,  being  difcharged.  Whereby  much 
bufinefs  was  obftru&ed,  though  none  of  the  faid  informants 
ever  knew  the  faid  jury  difcharged  before  the  laft  day  ol  the 
term,  which  was  not  till  four  days  after.  And  it  further  ap » 
peareth  to  the  committee,  by  the  evidence  of  Samuel  Aitrey, 
Jafper  Waterhoufe,  and  Philip  Ward,  clerks  that  have  long 
ferved  in  the  faid  court.  That  they  were  much  furprized  at 
the  faid  difcharging  of  the  jury,  in  that  it  was  never  done  in 
their  memory  before.  And  the  rather  becaufe  the  faid  Water¬ 
houfe,  as  fecondary,  conftantly  enters  on  that  grand  jury’s  pa¬ 
per  that  the  laft  day  of  the  term  is  given  them  to  return  their 
verditft  on,  as  the  laft  day  but  one  is  given  to  the  other  two 
grand  juries,  of  that  county  :  which  entry  is  as  followeth — 

Trinit .  32.  Car.  2. 

MIDDLESEX,  OSSULSTON  HUNDRED. 

Juratores  habent  diem  ad  Veredidum  fuum  redendum  vfque  diem 
Mercurii  pr oxime  pojl  tres .  Septimanas  Sand £  Trinitatis. 

a 

Being  the  laft  day  of  the  term,  and  fo  in  all  other  terms  the 
laft  day  is  given  ;  which  makes  it  appear  to  this  committee, 
that  they  were  not  in  truth  difcharged  for  not  having  their 
prefentments  ready,  fince  the  court  had  given  them  a  longer 
day,  but  only  to  obftrudl  their  farther  proceedings  :  And  it 
appeareth  by  the  evidence  aforefaid,  to  this  committee,  that 
the  four  judges  of  that  court  were  prefent  at  the  difcharging  ot 
the  laid  jury,  and  it  did  appear  that  any  of  them  did  not  diflent 
therein  ;  upon  confideration  whereof  the  committee,  came  to 
this  refolution. 

Refolved  that  it  is  the  opinion  of  this  committee,  that  the 
difcharging  of  the  grand  jury  of  the  hundred  of  Offulfton  in  the 
county  of  Middlefex  by  the  court  of  kings  bench  in  trinity 
term  laft,  before  the  laft  day  of  the  term  and  before  they  had 
finifhed  their  prefentments,  was  illegal  arbitrary  and  a  high 
mifdemeanor. 

The  refolutions  of  the  houfe  of  commons  upon  the  faid  re¬ 
port. 


12 


APPENDIX. 


I.  That  it  is  the  opinion  of  this  lioufe  that  the  difcharging 
of  the  grand  jury  of  the  Hundred  Offulfton,  in  the  county  of 
Middlefex,  by  the  court  of  king’s  bench,  in  Trinity  term  laft, 
before  the  laft  day  of  the  term,  and  before  they  had  finifhed 
their  preferments,  was  arbitrary  and  illegal,  deftrudlive  to  pub* 
lie  juftice,  a  manifeft  violation  of  the  oaths  of  the  judges  of 
that  court,  and  a  means  to  fubv^rt  the  fundamental  laws  of 
this  kingdom,  and  to  introduce  popery. 

Refolded,  That  fir  "William  Scroggs,  knight,  chief  juftice 
of  the  court  of  king’s  bench,  be  impeached  upon  the  Paid 
report,  and  the  refolutions  of  the  lioufe  thereupon. 

The  fecond  article  againft  chief  juftice  Scroggs  was  as  fol¬ 
lows  : 

That  he  arbitrarily  difeharged  the  gra.nd  jury  of  Middlefex, 
in  Trinity  term,  1679,  before  they  had  made  their  prefer¬ 
ments,  and  found  feveird  bills  of  indidlment  before  them  ;  by 
which  illegal  difeharge  of  the  faid  jury,  the  courts  of  juftice 
was  malicioufly  flopped,  the  prefemments  of  many  Papifts  and 
other  offenders  were  obftrudled,  and  in  particular  a  bill  of  in¬ 
dictment  againft  James,  duke  of  York,  for  abfenting  himfelf 
from  church,  which  was  then  before  them,  was  prevented  from 
being  proceeded  upon. 

[L.] 

2  Bac,  97. 

The  judges  are  bound  by  oath  to  determine  according  to 
the  known  laws  and  ancient  cuftoms  of  the  realm,  and  their 
rule  herein  mull  be  the  judicial  decifions  and  refolutions  of 
great  numbers,  of  learned,  wife  and  upright  judges,  upon  va¬ 
riety  of  particular  fadls  and  cafes,  and  not  their  own  arbitrary 
will  and  pleaiure,  or  that  of  their  prince. . 

But  though  they  are  to  judge  according  to  the  fettled  and 
cftablifhed  rules  and  ancient  cuftoms  of  the  nation  approved 
for  many  fucceflions  of  ages,  yet  are  they  freed  from  all  pro- 
lecutions  for  any  thing  done  bv  them  in  court,  which  appears 
to  have  been  an  (d)  error  of  their  judgment. 

(d)  Where  for  •wilful  corruption  they  have  been  complained  of 
in  the  Star  chamber.  Vide  Vaugh,  139.  And  may  fill  be  called 
to  an  account  in  parliament.  Hawh.  P.  C.  c.  72.  S.  6.  12.  Co. 


s 


APPENDIX. 


*3 


[M.] 

Vaugh.  139. 

If  a  court,  inferior  or  fuperior,  hath  given  a  falfe  or  erro¬ 
neous  judgment,  is  any  thing  more  frequent  than  to  reverfe 
*uch  judgments  by  writs  of  falfe  judgment,  of  error  or  appeals, 
iccording  to  the  courfe  of  the  kingdom. 

If  they  have  given  corrupt  and  diflaoneft  judgments  they 
have  in  all  ages  been  complained  of  to  the  king  in  the  Star 
;hamber,  or  to  the  parliament. 

Andrew  Horne,  in  his  Mirror  of  Juftice,  mentions  many 
udges  punifhed  by  king  Alfred  before  the  conqueft,  for  cor- 
*upt  judgments,  and  their  particular  names  and  offences,  which 
hould  not  be  had  but  from  the  records  of  thofe  times.  Our 
(lories  mention  many  punifhed  in  the  time  of  Edward  the  firft, 
bur  parliament  rolls  of  Edward  the  third’s  time,  of  Richard  the 
econd’s  time,  for  the  pernicious  refolutions  given  at  Notting¬ 
ham  caflle,  afford  examples  of  this  kind.  In  latter  times  the 
;  parliament  journals  of  18th  and  2 1  ft  Jac.  the  judgment  of  the 
hip-money  in  the  time  of  Charles  the  firfl  queflioned,  and  the 
^articular  judges  impeached. 

[N.] 

I  Hawk.  192.  c.  73.  $  6. 

Sedl.  6.  And  as  the  law  has  exempted  jurors  from  the  dan* 

1  ^er  of  incurring  any  punifhment  in  refpedl  of  their  verdidl  in 
Criminal  caufes,  it  hath  alfo  freed  the  judges  of  all  courts  of 
'ecord,  from  all  profecutions  whatfoever,  except  in  the  Parli¬ 
ament,  for  any  thing  done  by  them  openly  in  fuch  courts  as 
udges.  For  the  authority  of  a  government  cannot  be  main¬ 
tained  unlefs  the  greatefl  credit  be  given  to  thofe  who  are  fo 
lighly  entrufled  with  the  adminifl ration  of  public  juftice  ;  and 
t  would  be  impoffible  fo,r  them  to  keep  up  in  the  people  that 
veneration  of  their  perfons,  and  fubmiflion  to  their  judgments, 
.vithout  which  it  is  impoffible  to  execute  the  laws  with  vigor 
>  and  fuccefs,  if  they  fhould  be  continually  expofed  to  the  pro¬ 
secutions  of  thofe  whofe  partiality  to  their  own  caufes  would 
[induce  them  to  think  themfelves  injured.  Yet  if  a  judge  will 
To  far  forget  the  dignity  and  honor  of  his  poll  as  to  turn  foli- 
jsitor  in  a  caufe  which  he  is  to  judge,  and  privately  and  extra- 
udicially  tamper  with  witneftes,  or  labor  jurors,  he  hath  no 
Irqafon  to  complain  if  he  be  dealt  with  according  to  the  fame 
Capacity  to  which  he  fo  bafely  degrades  himfelf. 


APPENDIX. 


H 

A  crime  or  mifdemeanor  is  an  aft  committed  or  omitted  in 
violation  of  a  public  law,  either  forbidding  or  commanding  it. 
This  general  definition  comprehends  both  crimes  and  mifde- 
nieanors,  which  properly  fpeaking  are  mere  fynonimous  terms ; 
though,  in  common  ufage,  the  word  “  crimes”  is  made  to 
denote  fuch  offences  as,  are  of  a  deeper  and  atrocious  dye,  while 
Imaller  faults  and  omifijons  of  lefs  confequence,  are  comprized 
under  the  gentle?  name  of  “  raifdemeanors”  only. 


TRIAL 


O  V 

ALEXANDER  ADDISON \ 


ON  AN  IMPEACHMENT  BEFORE  THE  SENATE  OF  THE 
COMMONWEALTH  OF  PENNS YLVANIA, 

IN  JANUARY  1803. 


INTRODUCTION, 


On  the  nth  January,  1802,  Mr.  M’Mafters,  Member  of 
the  Houfe  of  Rcprefentatives,  from  the  county  of  Allegheny, 
prefented  a  petition  from  fundry  inhabitants  of  Allegheny 
county,  as  follows  : 

The  Honorable  the  Representatives  of  the  State  of  Penn- 

fylvania* 

The  reprefentation  and  petition  of  fundry  inhabitants  of  the 
Weftern  Country, 

HUMBLY  SHEWETH, 

That  we  are  fenfible  of  the  great  difficulty  of  the  fituation  of 
a  judge,  and  the  tendernefs  and  delicacy  with  which  his  cha- 
radter  ought  to  be  touched,  or  complaint  made.  But  for  a 
coniiderable  time,  unfavorable  impreffions  have  exilled  with 
regard  to  Alexander  Addison,  prefident  of  this  diftridl;  as 
oppreffive,  tyrannical  and  partial  in  the  adminiftration  of  juf- 
tice,  and  guilty  of  great  abufes  and  indelicacies  as  a  man,  unbe¬ 
coming  his  high  llation  and  trull.  So  that  it  becomes  neceflary, 
equally  for  his  credit,  as  for  the  fafety  of  the  people,  that  this 
matter  ffiould  receive  examination  ;  which  can  be  done  only  un¬ 
der  an  authority,  which  has  power  to  call  for  witneffes,  and 
colledl  tellimony.  That  authority  is  your  Houfe,  in  which 
the  conftitution  veils  the  right  of  impeaching  or  demanding 
the  removal  of  judicial  officers.  We  folicit  therefore,  that 
you  appoint  a  committee  of  your  Houfe,  or  other  lit  per- 
fons  for  this  purpofe,  in  order  to  report  to  the  next  AfTembly ; 

B 


L  6  ] 


who  may  take  the  fadfs,  that  may  be  found,  into  conlideration, 
and  proceed  accordingly.  And  your  petitioners,  as  in  duty 
bound,  Hi  all  pray.  Signed  by  384  citizens. 

On  the  2 1  ft  January,  on  motion  of  Mr.  Ewalt,  feconded  by 
Mr.  Laycock,  this  petition  was  referred  to  Mr.  Jcffe  Moore, 
Mr.  F.  Smith,  Mr.  Fergufon,  Mr.  Boileau  and  Mr.  Penrofe. 

On  the  25th  January,  Mr.  M’Mafters  and  Mr.  Ewalt  pre- 
fented  feveral  petitions  from  297  inhabitants  of  Allegheny  Bea¬ 
ver  and  Butler  counties,  as  follows: 

The  Honorable  House  of  Representatives  of  the  Com - 
monwealth  of  Pennfylvania,  in  General  Affemhly  met. 

The  petition  of  the  underwritten  inhabitants  of  Allegheny 
Beaver  and  Butler  counties, 

HUMBLY  SHEWETH, 

✓  * 

That  feveral  of  your  petitioners  have  witneffed,  and  the  others, 
have  been  informed  by  a  general  and  uncontradidted  report,  that 
Alexander  Addison,  prefident  of  the  court  of  common  pleas, 
in  the  fifth  diftridt,  whilft  fitting  as  prefident  of  the  court 
cf  Allegheny  county,  on  Monday  the  22di December,  1800, 
and  on  Monday  the  2 2d  June,  1801,  and  at  other  times  did 
actually  interrupt  and  prevent  J.  B.  C.  Lucas,  one  of  the 
aftbeiate  judges  of  the  court  of  common  pleas  of  Allegheny 
county  from  addrefiing  the  jury  of  the  fame  court,  and  com¬ 
municating  to  them  his  ideas  on  the  fubjedts  and  cafes  before 
the  court  and  jury.  Your  petitioners  conceive,  that  being 
under  the  jurifdidtion  of  the  faid  court,  they  have  a  right 
to  the  fervices  and  official  affiftance  of  every  judge,  letting 
at  the  faid  court.  That  having  been  deprived  of  thofe  fer¬ 
vices  in  the  time  and  manner  above  related,  they  believe  the 
checks  and  fecurity  intended  by  the  conftitution  of  this  com¬ 
monwealth  in  its  judiciray  fyftem,  relative  to  the  court  of  com¬ 
mon  pleas  and  quarter  feffions  have  been  impaired  ;  the  pow¬ 
ers  of  the  faid  court  have  been  unduly  engrafted ;  the  con- 
ftiuitional  weight  of  fome  of  the  aftociate  judges  almoft  anni¬ 
hilated,  and  undei  thofe  circumfcances,  they  find  themfelves 
wrefted  of  fome  of  their  deareft  rights.  Your  petitioners  there¬ 
fore  humbly  pray  your  Honorable  Houfe,  that  it  may  be 
pleafed  to  take  into  its  moft  ferious  conlideration  the  fadfs  here¬ 
in  ftated,  and  adt  thereon  as  it  may  feem  meet,  and  they  will 
pray. 

Allegheny  county,  January  ift,  1802. 

This  Detiiion  was  referred  to  the  fame  committee. 

x 

On  the  19th  February,  Mr.  Jeffe  Moore,  from  this  committee 
reported  :  “  That  being  firmly  perfuaded,  that  the  peace  and 


i 


C  7  2 


much  of  the  happinefs  of  civil  fociety,  are  neceifarily  conne&ed 
with  the  impartial  and  uninterrupted  adminiftration  of  juftice  ; 
they  have  anxioufly  refledled  on  the  difficulty  and  importance 
of  the  fubje&s  committed  to  them  ;  that  from  faid  petitions  and 
other  documents,  it  appears  to  them,  that  the  faid  Alexander 
Addison,  while  a&ing  as  prelident  of  the  court  of  common  pleas 
of  Allegheny  county,  did  heretofore,  at  different  times  interrupt 
and  prevent  John  B.  C.  Lucas,  an  affociate  judge  of  the  county 
aforefaid,  from  fully  and  freely  exercifing  and  difcharging  his  of- 
cial  duty  as  fuch  affociate  ;  that  if  the  ufurpations  aforefaid,  of 
the  faid  Alexander  Addison,  be  quietly  acquiefced  in  by  the 
Legiflature,  there  is  reafon  to  apprehend,  that  the  conftitutional 
independence  of  the  affociate  judges  of  the  courts  of  common 
pleas,  within  the  faid  circuit  will  be  annihilated,  and  all  the  uti¬ 
lity  which  the  public  has  a  right  to  expert  from  their  fervices, 
prevented  or  entirely  deftroyed  ;  that  it  is  in  vain,  that  our  con- 
flitution  and  laws  have  eflabliffied  courts,  confiding  of  five  jud¬ 
ges,  mutually  to  aid  and  counfel,  or  to  acf  independantly  of  each 
other,  as  the  law,  their  judgments  and  confciences  ffiould  require, 
if  one  of  them  may,  whenever  a&uated  by  paffion  or  caprice, 
with  impunity  affume  to  himfelf  all  the  authority  to  which  the 
whole  of  them  only  are  competent  ;  and  that  to  fecure  the  free 
uninterrupted  and  impartial  adminiftration  of  juftice  within  the 
faid  circuit,  it  is  neceffary  that  the  Legiflature,  as  far  as  their 
authority  extends,  ffiould  endeavour  promptly  to  remedy  the 
evils,  and  redrefs  the  grievances  exhibited  in  the  petitions  and 
documents  aforefaid.  The  committee  therefore  fubmit  the  fol¬ 
lowing  refolution,  viz.” 

“  Refolded,  That  a  committee  be  appointed,  to  prepare  and 
draft  an  article  or  articles  of  impeachment,  againt  the  faid  Alex¬ 
ander  Addison,  prefident  as  aforefaid,  for  a  mifdemeanor  or 
mifdemeanors  in  office.” 

On  the  23d  February,  this  report  was  adopted,  and  the  com¬ 
mittee  who  brought  it  in  ordered  to  be  a  committee,  for  the  pur- 
pofes  expreffed  in  the  refolution. 

On  the  9th  March,  Mr.  Jeffe  Moore,  from  the  committee  ap¬ 
pointed  to  draft  the  articles  of  impeachment,  reported  two  ar¬ 
ticles,  which  on  the  1  ith  were  adopted,  by  a  committee  of  the 
whole  Houfe. 

On  the  1 8th  March,  on  the  motion  of  Mr.  Laycock,  feconded 
by  Mr.  Ewalt,  the  articles  of  impeachment  again!!  Alexander 
Addison,  as  reported  by  the  committee  of  the  whole,  were  read 
in  the  Houfe  and  amended,  by  ftriking  out  the  words  “  an  affociate 
4 udge  ’  and  inferting  the  words  u  one  of  the  judges”  in  both  ar¬ 
ticles.  And  on  the  19th  it  was  ordered,  that  the  faid  articles  be 
engrofied  and  figned  by  the  Speaker ;  and  a  committee  be  ap- 


E  8  3 


pointed,  to  exhibit  the  fame  to  the  Senate,  and  to  manage  the 
trial  thereof.  Mr.  Boileau,  Mr.  Jeffe  Moore,  Mr.  F.  Smith,  Mr. 
Mitchel  and  Mr.  R.  Porter,  were  appointed  a  committee  to  ex¬ 
hibit  the  articles,  and  manage  the  trial. 

On  the  25th  March,  the  following  letter  of  Mr.  Addison, 
to  the  Speaker,  was  read  in  the  Houfe  of  Reprefentatives : 

Pittfhurgh ,  19//J  March ,  1802. 

SIR, 

I  learn  from  the  newfpapers,  that  a  refolution  has  palled  the 
Houfeof  Reprefentatives,  for  preferring  an  impeachment  againft 
me. 

Prefuming  that  the  zeal  of  the  Houfe  for  public  juftice,  is 
perfe&ly  confident  with  a  difpofition,  to  afford  me  every  pro¬ 
per  means  of  preparation  for  defence.  My  anxiety  to  meet  this 
accufation  as  early  and  fully  as  poffible,  induces  me  to  requell 
that  the  clerk  of  the  Houfe  be  dire&ed  to  furnilh  me  with  a  co¬ 
py  of  the  petitions,  with  the  names  annexed  ;  and  of  the  affida¬ 
vits  or  other  evidence,  on  which  this  refolution  is  founded  ;  and 
a  copy  of  the  article  or  articles  of  impeachment ;  and  a  lift  of 
the  witneffes  by  which  it  is  intended  to  fupport  the  impeach¬ 
ment. 

For  an  officer  at  fuch  a  diftance  as  I  am,  to  procure  the  atten¬ 
dance  of  the  witneffes  that  may  be  neceffary  for  his  defence  on 
an  impeachment,  might  be  an  intolerable  burden.  It  would  be 
in  fa£t,  faying  that  every  man  who  accepts  an  office,  does  it 
at  the  rifle  of  being  ruined,  when  any  malicious  man  choofes  to 
make  oath  againft  him.  And  as  I  am  not  confcious  of  any  mif- 
demeanor  in  office,  nor  acquainted  with  the  evidence  againft  me, 
I  think  myfelf  entitled  to  be  prefumed  innocent  'till  the  con¬ 
trary  appear  on  an  open  trial,  at  which  I  may  have  an  opportuni¬ 
ty  of  being  prefent.  I  therefore  beg  leave  further  to  requeft, 
that  the  managers  of  the  impeachment  may  be  inftrudled  to 
procure  the  attendance  of  fuch  witneffes,  as  I  may  fatisfy  them, 
are  neceffary  for  my  defence  at  the  expence  of  the  State.  This 
I  have  the  more  reafon  to  expeffc,  as  the  State  is  interefted  for  its 
own  honor  in  the  acquital  of  an  officer  in  my  ftation  ;  if  he  be 
really  innocent,  as  I  fincerely  think  I  am,  and  as  I  trull  the 
Houfe  will  rejoice  in  being  convinced  of.  I  beg  further,  that 
information  be  given  me  of  the  names  of  the  managers  of  the 
impeachment,  and  with  which  of  them  I  lhall  correfpond  ;  and 
alfo  of  what  order  the  Houfe  may  think  proper  to  take  on 
this  letter,  (which,  for  this  purpofe  I  requeft  the  favor  of  you,  t« 


C  9  J 


lay  before  the  Houle  as  foon  as  pofiible,)  and  that  the  papers 
which  I  defire,  may  be  forwarded  to  me  by  the  firft  proper  oc- 
ealion  or  by  poft. 

I  am  Sir,  with  due  refpedl, 
your  moll  obedient  fervant, 

ALEXANDER  ADDISON. 

The  Honorable  Ifaac  Weaver ,  jun.  Efquire, 

Speaker  of  the  Houfe  of  Reprefentatives. 

On  the  fecond  reading  of  this  letter,  Mr.  JefTc  Moore  moved 
and  read  as  follows  : 

Refolved ,  That  this  Houfe,  having  already  preferred  article* 
of  impeachment  againll  Alexander  Addison  to  the  Senate, 
do  not  apprehend,  that  at  prefent  they  can  properly  grant  the 
requefts  in  his  letter  to  the  Speaker. 

Mr.  Wayne  moved  to  pollpone  this  in  order  to  introduce 
the  following  as  a  fubllitute. 

Refolvedy  That  the  Clerk  of  the  Houfe  be  diredled  to  make 
out  copies  of  the  refpedtive  papers  and  documents  requelled  by 
Alexander  Addison,  and  referred  to  in  his  letter  to  theSpeak- 
er,  and  caufe  them  to  be  tranfmitted  to  him  as  foon  as  conveni¬ 
ent. 

This  was  negatived,  only  fixteen  Members  voting  for  it. 

Mr.  Penrofe  then  moved  to  amend  Mr.  Moore’s  rcfolution, 
by  adding  to  the  end  thereof  the  words  “  and  ihat  a  tranfcript 
of  this  refolution  together  ‘with  the  letter  of  Alexander  Addtfon  to 
the  Speaker  of  this  Houfe ,  be  tranfmitted  to  the  Senate  ”  But 
this  was  negatived,  and  Mr.  Moore’s  agreed  to,  together  with 
a  relolution,  moved  by  Mr.  Wayne,  that  the  Clerk  tranfmit 
to  Alexander  Addison,  Efquire,  a  tranfcript  of  the  refolu¬ 
tion,  relative  to  the  order  taken  upon  his  letter. 

On  the  22d  March  the  Clerk  of  the  Houle  of  Reprefentatives 
prefented  to  the  Senate  a  copy  of  the  refolution  of  the  Houfe  of 
Reprefentatives,  of  the  19th  March. 

On  the  23d  March,  the  managers  pefented  to  the  Senate  the 
at  tides  of  impeachment ;  which  on  the  27th  March,  the  Senate 
re  ferred  to  a  committee. 

On  the  29th  March  this  committee  reported  to  the  Se¬ 
nate  the  following  refolution  : 

Refolved ,  That  the  Senate  will  meet  at  jjtlie  Court-houfc, 
in  the  borough  of  Lancaller,  on  the  firll  day  in  Septem¬ 
ber  next,  and  on  the  following  Thurfday  commence  the  trial 
of  Alexander  Addison,  prendent  of  the  courts  within  the 
fifth  diftridt  of  Pennfylvania,  on  the  articles  of  impeachment. 


C  IO  ] 


Exhibited  againll  him  by  the  Houfe  of  Reprefentatives,  i* 
their  name  and  in  the  name  of  the  people  of  Pennfylvania, 
and  that  the  Speaker  be  directed  to  ilfue  an  order,  requir¬ 
ing  him  the  faid  Alexander  Addison,  to  attend  on  the 
day  laft  aforefaid,  to  anfwer  the  articles  of  impeachment 
aforefaid,  and  that  the  faid  order  be  ferved  on  him,  and  a 
copy  of  the  faid  articles  of  impeachment  be  delivered  to  the 
faid  Alexander  Addis  or,  forty  days  before  the  day  ap¬ 
pointed  for  trial. 


Mr.  Rodman  then  moved  that  the  Senate  paoceed  to  the 
trial  on  the  fecond  Tuefday  of  December  next. 

Mr.  Gurney  moved  for  the  fecond  Tuefday  in  May. 

Mr.  Findley  moved  that  the  further  confideration  of  the 
report  be  poftponed,  and  efpecially  recommended  to  the  con¬ 
federation  of  the  next  Legiilature. 


Mr.  Rodman’s  propofition  was  adopted,  and  the  report 

altered  accordingly. 

. Mr*  Gurney  moved  that  the  Speaker  be  requelled  to  fur- 
nilh  Mr.  Addison  with  copies  of  all  fuch  papers,  which 
have  been  adduced  to  fubftantiate  the  charges  againll  him 
This  was  negatived. 

Mr.  Findley  moved  that  the  further  confideration  of  the 
report  be  poftponed  generally,  ft  his  was  negatived. 

ft'lie  report  was  then  adopted,  as  altered  on  the  motion 

of  Mr.  Rodman,  fixing  the  fecond  Tuefday  of  December  as 
the  day  of  trial. 

Duiing  the  lecefsofthe  Legiilature  the  following  procefs 
\sas  feived  on  Alexander  Addison,  Efquire,  and  returned 
with  the  annexed  depolition  of  the  ferving  thereof: 

PlNNSYLVANlA,  If. 


The  Commonwealth  of  Pennfylvania  to  the  Sheriff  of  Alleghany 

County — Greeting : 


We  command  you  that  you  fummon  Alexander  Addison, 
late  of  your  county,  prefident  of  the  courts  of  common  pleas,  in 
circuit  confifting  of  the  counties  of  Wellmoreland,  Fayette, 
valhington  and  Allegheny,  fo  that  he  be  and  appear  at  the  bar 
o.  oui  Senate,  in  the  borough  of  Lancafter,  on  the  fecond  Tuef- 
Decembei  next,  to  anfwer  articles  of  accufation  and  im¬ 
pediment,  for  high  mifdemeanors  in  office,  exhibited  againll  him 
p  ,jUr  -H°ufe  of  Reprefentatives,  in  their  name,  and  in  the  name 

°  ■  people  of  Pennfylvania  $  and  have  you  then  and  there  this 

precept. 


Witnefs.  John  Pearfon,  Efquire,  Speaker  of  our  faid  Senate 
at  Lancafter,  this  feventh  day  of  April,  in  the  year  of  oui  Lord 
one  thoufand,  eight  hundred  and  two. 

(A«eft)  JOHN  PEARSON. 

Geo.  Bryan,  Clerk  of  the  Senate. 

(Endorfed) 

Allegheny  County,  ff. 

Memorandum.  This  third  day  of  July,  in  the  year  of  our 
Lord  one  thoufand  eight  hundred  and  two,  before  me,  George 
Wallace,  one  of  the  afiociate  judges  of  the  court  of  common  pleas 
of  Allegheny  county,  perfonally  came  William  Wufthoff,  Ihe- 
riffof  the  faid  county,  who  being  duly  fworn,  depofeth  and  faith, 
that  on  the  firft  day  of  July,  between  the  hours  of  eight  and  nine 
P.  M.  he  had  read  the  within  fummons  to  Alexander  Addi¬ 
son  within  named,  and  delivered  to  faid  Alexander  Addison, 
a  true  copy  thereof. 

Witnefs,  my  hand  and  feal,  the  day  and  year  aforefaid,  So 
anfwers, 

WILLIAM  WUSTHOFF,  Sheriff. 

Sworn  and  fubfcribed  before  me,l 
the  day  and  year  aforefaid ,  J 

George  Wallace. 

On  the  13th  of  December  1802,  a  committe  was  appointed 
in  the  Houfe  of  Repreientativee,  to  enquire  and  report  what  pro¬ 
ceedings  the  Houfe  ought  to  adopt,  relative  to  the  articles  of 
impeachment  preferred  by  the  late  Houle  of  R eprefentatives 
againlt  Alexander  Addifon,  Efquire  ;  they  reported  on  the  1  cth: 

That  the  committee,  to  whom  was  referred,  “the  extra&a 
from  the  Journals  of  the  Senate,  concerning  the  impeachment 
there  alledged  to  be  pending  againlt  Alexander  Addifon,  prefi- 
ildent  of  the  feveral  courts  of  common  pleas,  conlilting  of  the 
counties  of  Wellmoreland,  Fayette,  Walhington  and  Allegheny, 
to  enquire,  and  report  what  proceedings  this  Houfe  ought  to 
adopt  relative  to  the  faid  impeachment,  and  the  charges  therein 
contained  after  maturely  considering  thofe  charges  and  the 
evidence  (fo  far  at  leak  as  they  could  obtain  it)  on  which  they 
ire. grounded,  do  not  apprehend  that  they  are  fuch  as  the  confti- 
tunon  requires  to  be  profecuted  by  an  impeachment.  For  the 
:onftitution  ordains,  that  “  The  Governor,  and  all  other  civil  of¬ 
fers,  under  this  commonwealth,  (hall  be  liable  to  impeachment 
or  any  mf demeanor  in  office:  but  judgment  in  fuch  cafes  fhall 
•ot  extend  further  than  to  removal  from  office,  and  difqualifica- 
,on  to  hold  any  office  of  honor,  truft  or  profit  under  tin's  com- 
nonweakh  and  that  “  the  judges  of  the  fupreme  court,  and 


/ 


[  12  3 

©f  the  feveral  courts  of  common  pleas,  {hall  hold  their  offices  dur¬ 
ing  good  behavior  :  but  for  any  reafonable  caufe ,  which  fhall  not 
he  fufficient  ground  of  impeachment,  the  Governor  may  remove 
any  of  them,  on  the  addrefs  of  two  thirds  of  each  branch  of  the 
Legifiature.’ * 

Now  to  define  with  precifion  thofe  official  mif demeanors ,  con-- 
templated  by  the  conftitution  as  fufficient  ground  of  impeach¬ 
ment,  and  thofe  “  reafonable  caufes'y  of  removal  from  office,  on 
the  addrefs  of  two  thirds  of  each  branch  of  the  Legifiature,  i  s  no 
eafy  tafk  :  different  perfons,  without  being  juftly  liable  to  any 
unfavorable  imputation,  may  really  be  led  to  make  a  different 
clarification  or  arrangement.  Had  the  conftitution  told  us  by 
an  example  in  each  cafe,  what  fhould  be  fufficient  ground  foi 
impeachment,  and  what  fnould  be  fufficient  cauie  for  remo\al 
from  office,  on  the  addrefs  of  two  thirds  of  each  branch  of  the  Le- 
giflature,  we  ffiould  have  lefs  difficulty  in  afcertaining  what  fpe- 
cies  of  offences  ought  to  be  comprehended  within  each  clarifica¬ 
tion.  But  this  has  not  been  done  ;  it  could  not  be  eafily  ef¬ 
fected,  without  incurring  the  danger  of  excluding  from  pumffi- 
ment  hundreds  of  offences,  perhaps  more  injurious  and  more  ne- 
ceffary  to  be  puniffied  than  thofe  which  might  have  been  men¬ 
tioned  as  examples.  When,  thererore,  a  ciwl  officer  ought  to 
be  impeached,  and  when  he  fhould  be  removed  from  office,  on 
the  addrefs  of  two  thirds  of  each  branch  oi  the  Legifiature,  can 
be”  known  only  from  a  fair  conftru&ion  of  the  conftitution  as  it 
is  written,  from  judicial  decifions  the  definitions  and  deicnptions 
of  writers  on  law  of  acknowledged  authority,  and  from  that 
found  diferetion,  limited  by  the  conftitution,  and  that  knowledge 
which  the  Legifiature  is  fuppofed  to  poffefs,  of  what  in  general 
as  well  as  in  every  particular  inftance,  the  pure  adminiftration  of 
juftice  and  the  public  good  require  to  be  done. 

Difqualification  to  hold  any  office  of  honor,  truft  or  profit  un¬ 
der  this  commonwealth,  is  the  leaft  puniffiment  confequent  on  an 
impeachment,  m  cafe  of  a  conviction,  a  punifhment,  that  to  a 
generous  mind  is  hardly  lefs  than  death  itfelf,  and  that  on  ac¬ 
count  of  its  feverity  will  probably  caufe  many  perfons  impeached 
to  be  acquitted,  who  certainly  would,  and  ought  to  be  punifhed 
by  another  mode  of  profecution.  But  in  a  cafe  fuch  as  that  re¬ 
ferred  to  your  committee,  in  which  there  appears  to  them  fcarce- 
ly  room  to  doubt,  what  manner  of  proceeding  ought  to  be  adopted, 
prudence,  juftice  and  humanity,  as  well  as  the  fpirit  of  the  confti- 
tution  feem  to  require  that,  that  conftitutional  mode  of  procee^.- 
ino-  ffiould  be  felecled  which  is  the  mildeft,  and  beft  calculated 
eiffidlually  to  remedy  the  evils  complained  of.  Though  our  im¬ 
mediate  predeceffors,  at  leaft  as  patriotic  as  we  can  pretend  to  be, 
have  thought  it  their  duty  in  this  inftance  to  prefer  an  impeach¬ 
ment,  of  the  pending  exigence  and  expediency  of  which,  wc 


C  13  3 


conceive  this  Houfe  have  an  undoubted  and  unqueftionable  right 
to  judge  and  decide  ;  yet  your  committee  do  not  apprehendj 
that  this  prefent  Houfe  of  Reprefentatives  are  bound  to  profe- 
cute  an  impeachment,  which  they  do  not  believe  to  be  authori- 
fed  and  required  by  the.conftitution,  merely  becaufe  it  hath  been 
preferred  by  a  former  Houfe, 

But  while  your  committee  do  hot  apprehend,  that  the  offen¬ 
ces  with  which  the  faid  Alexander  Addifon  Hands  charged  in  the 
faid  impeachment,  are  fufficient  ground  to  aiithorife  and  require 
the  profecution  thereof  by  this  Houfe,  they  neverthelefs  furnifh 
fuch  reafonable  caufe  as  ought  to  induce  an  immediate  enquiry 
Concerning  them  :  Your  committee  therefore  offer  the  following 
refolution  : 


Refolved ,  That  the  faid  impeachment  is  pending  before  the 

I  Senate,  againft  the  faid  Alexander  Addifon  ;  but  that  this 
Houfe,  as  well  for  the  reafons  before  affigned  as  others,  ought 
not  to  profecute  the  fame. 

On  the  1 7th,  the  Houfe  negatived  the  report  of  the  com¬ 
mittee  :  and 

Refolved. ,  That  a  committee  be  appointed  to  manage  on  the 
part  of  this  Houfe,  the  articles  of  impeachment  now  pending  be¬ 
fore  the  Seriate,  againft  Alexander  Addifon,  and  that  they  be 
empowered  to  fend  for  perfons  and  papers,  and  to  examine  wit- 
neffes  upon  oath  or  affirmation,  and 

Ordered ,  That  Mr.  Rofs;  Mr.  Ferguforl,  Mr.  Pugh,  Mr, 
Simpfon  and  Mr.  I.  Davis,  be  a  committee  for  that  pu'rpofe. 

On  motion  of  Mr.  Laycock,  feconded  by  Mr,  M’Mafters, 

Refolved ,  That  the  attorney-general  and  fuch  other  counfe). 
as  the  committee  appointed  to  manage  the  articles  of  impeach¬ 
ment,  againft  Alexander  Addifon,  may  think  proper,  be  requefted 
to  give  their  attendance  at  the  trial  of  the  faid  Alexander  Addi¬ 
fon,  before  the  Senate  of  this  commonwealth,  arid  affift  thereat 
•  on  behalf  of  the  Houfe  of  Reprefentatives, 

On  the  1 8th  December,  a  letter  addrefted  to  the  Speaker^ 
figned  Alexander  Addifon,  was  read  as  follows,  viz. 


SIR, 


L'ancajler ,  18 th  December >  1802. 


I  requeft  that  the  Houfe  will  direft  the  Clerk,  to  allow  me  to 
examine  and  tranferibe  fuch  documents  in  his  hands,  relative  to 
my  impeachment,  as  I  may  think  neceftary  for  my  defence  ;  and 
that  the  managers  will  be  inftrudted  to  fummon  at  the  public  ex* 


I 


/ 


t  14  3 


pence,  fuch  witneffes  in  my  behalf,  as  I  may  fatisfy  them,  arc 
neceflary  on  the  trial  of  the  impeachment. 

Confcious  as  I  am  of  innocence,  I  have  a  right  to  claim  a  pre¬ 
emption  of  it  ’till  a  trial  exhibits  me  in  another  light,  and  if  I 
be  innocent,  the  honor  of  the  State  is  concerned  in  my  acquit¬ 
tal,  nor  ought  it,  in  my  opinion,  to  be  laid  upon  ine  to  defend 
rnyfelf,  at  fo  great  a  diftance  from  the  place,  where  the  facts 
happened  at  an  expence,  which  the  profits  of  the  office  would 
not  juftify  me  to  incur.  1  owe  a  duty  to  the  public  to  explain 
my  official  condudl  thus  folemnly  charged,  and  I  am  willing  to 
perform  it ;  but  I  owe  alfo  a  duty  to  my  own  family  and  private 
intereft* 

I  am  with  due  refpedt, 

Your  moil  obedient  fervant, 

ALEXANDER  ADDISON.- 

The  Honorable  tfciac  Weaver,'  jun.  Efquire, 

Speaker  of  the  Houfe  of  Representatives 

of  Pennfylvania. 

Mr.  Evans,  feconded  by  Mr.  Welles,  moved  that  it  be  “  Re* 
folved ,  That  the  requeft  of  Alexander  Addifon.  Efquire,  as 
contained  in  his  letter  of  this  date  to  the  Speakei  be  gi  anted. 

On  the  20th  December,  this  refolution  was  poftponed,  and  the 
following  adopted:  “  Refolved,  That  the  clerk  be  directed  to- 
furnifh  Alexander  Addifon,  Efquire,  with  correct  copies  of  all 
fuch  papers,  in  the  poiTefiion  of  this  Houfe,  as  the  laid  Alexan¬ 
der  Addifon,  may  judge  neceffary  to  his  defence,  on  the  im¬ 
peachment  now  pending  before  the  fenate.” 

IN  THE  SENATE. 

On  Tuefday  the  14th  December,  a  letter  from  Alexander 
Addifon,  informing  that  he  is  now  attending,  in  puriuance  of 
the  fummons  ferved  on  him,  to  appear  and  anfwer  certain  arti¬ 
cles  of  impeachment,  was  read.  It  was  moved,  that  the  mem¬ 
bers  ot  the  Senate  be  fworn  or  affirmed,  in  order  to  proceed  to 
the  trial  of  the  impeachment :  but  on  motion  u  Refolved ,  That 
the  trial  be  poftponed  ’till  to  morrow. 


On  2 1  ft  December,  the  following  letter  was  read  : 

Lancajler,  loth  December,  1802. 

SIR, 

To  the  articles  of  impeachment  againft  me,  I  am  ready  to 
plead. 

At  the  laft  feffion  of  the  Alfembly,  I  applied  to  the  Houfe  of 
Reprefentatives,  (as  foon  as  a  I  learned  an  impeachment  was 


[  H  1 

determined  on)  for  certain  things  to  be  done  in  this  behalf. 
‘Thefe  were  then  refufed.  I  fent  a  copy  of  the  fame  letter  to  the 
Senate,  as  I  underftood  from  a  private  letter,  and  afterwards 
from  the  minutes,  that  the  refufal  was  on  the  ground,  that  the 
impeachment  be  preferred  to  the  Senate  ;  the  Home  of  Repre- 
fentatives  could  not  properly  grant  the  requeft.  Before  my  let¬ 
ter  to  you,  could  reach  Lancafter,  I  prefume  the  Affembly  had 
broke  up,  and  I  know  not  whether  you  got  it.  _  Alter  the 
Houfe  of  Reprefentatives  had  in  their  feffion,  determined  to  pro- 
fecute  the  impeachment  and  appointed  managers,  I  applied  to 
that  Houfe  for  copies  of  the  documents,  and inftrucbonsl to  their 
managers,  to  fummon  at  the  public  expence  fuch  witneffes,  as  1 
fhould  fatisfy  them  were  necelfary  foi  my  defence.  >  I  hey  have 
ordered  the  documents  to  be  given,  but  refufed  the  inttruftions i  ; 
and  in  the  argument  for  refufmg,  one  of  the  members  ftated, 
that  the  Senate  was  the  proper  place  to  apply  to.  It  was  Hated 
that  I  wanted  only  four  witneffes.  I  beg  leave  to  exprefs  again 
my  opinion  that  this  is  a  cafe  different  from  common  profecu- 
tions,  where  the  fads  are  to  be  tried  in  the  county  :  different 
from  all  the  impeachments  hitherto  in  Pennfylvama ;  when  the 
Leo-iflature  fat  where  the  parties  lived  :  different  too,  m  another 
refneft,  that  there  is  no  charge  of  corruption  or  dilhonetty-^ 
none  conveying  any  ftain  of  infamy.  For  an  officer  at  a  d.ftance 
from  the  Legiflature,  at  which  I  am  to  bring  down  witnelies,  at 
his  own  expence,  would  be  telling  every  fuch  man,  when  you  ac¬ 
cept  of  an  office,  you  do  it  at  the  rifle  of  ruin  if  ever  an  accufa- 
tion  is  made  againft  you.  The  burden  would  to  me  ne  intoiei- 

able. 

The  Senate  who  are  to  try  the  impeachment,  would  no  doubt 
wifh  to  have  their  confciences  well  informed  ;  and  it  the  Houle 
of  ReDrefentatives  may  expend  the  public  money,  m  paying 
counfel  to  fuoport  the  accufation,  may  not  the  Senate  do  fo,  m 
an  endeavour  to  clear  the  chara&er  of  an  officer,  when  the  honor 
of  the  State  is  concerned  in  ffiewing  the  purity  of  officers  who 
are  innocent,  as  much  as  in  puniffiing  them  as  guilt) . 

I  beg  leave  to  requeft,  that  the  Senate  will  order  fubpotnas 
to  iffue,  to  require  the  attendance  of  witneffes  in  my  behalf  at 
the  public  expence  ;  I  (hall  defire  the  attendance  of  four  only 
and  will  fatisfy  the  Senate  that  their  teftimony  is  neceffary,  it 
the  Senate  require  this  in  the  cafe  of  fo  few. 

With  due  refpe£t,  I  am 

Your  mod  obedient  fervant, 

ALEXANDER  ADDISON. 

Honorable  Speaker  of  Senate. 


C  16  ] 


This  letter  was  referred  to  a  committee,  which  on  the  2  id 
made  a  report,  which  was  amended  and  adopted  by  the  Senate 
as  follows,  to  \yit ; 

Refolded,  That  the  Senate  will  fit  in  their  judicial  capacity  on 
the  third  Monday  of  January  next,  for  the  purpofe  of  hearing 
and  determining  on  articles  of  accufation  and  impeachment,  ex¬ 
hibited  by  the  Houfe  of  Reprefentatives  againft  Alexander  Ad- 
difon,  and  that  the  Speaker  be,  and  he  is  hereby  direfted  to  if- 
fue  procefs  on  the  application  of  the  managers  on  the  part  of 
the  He  life  of  Reprefentatives,  or  of  Alexander  Addifon,  to  re¬ 
quire  the  attendance  of  fuch  witneffes  as  either  of  the  faid  par* 
ties  {hall  judge  neceflary. 

It  being  refclvea,  that  Alexander  Addifon  be  now  called  and 
admitted  to  plead  to  the  charges,  exhibited  againft  him  by  the 
Houfe  of  Reprefentatives  ;  and  that/the  Houfe  of  Reprefenta- 
tives  be  info  ripe  d  thereof ;  and  that  Alexander.  Addifon  has  no¬ 
tified  the  Senate  of  his  readinefs  to  appear.  The  managers  were 
introduced  ;  and  Alexander  Addifon  came,  and  the  articles  of 
impeachment  were  read  to  him  as  follows  : 

Articles  of  accufaiion  and  impeachment  againjl  Alexander  Addi - 
fon,  prefident  oj  the  courts  of  common  pleas ,  in  the  circuit  con- 
Jlfting  of  the  counties  of  W ejlmor eland,  Fayette ,  IV afhlngton  and 
Allegheny ,  preferred  hy  the  Houfe  of  Reprefentatives  of  the 
commonwealth  of  Pennfylvania ,  in  their  name  and  in  the  name 
of  the  people  of  Pennfylvania ,  and  exhibited  to  the  Senate  of 
the  faid  commonwealth , 

Ar.ticlf  1.  That  the  faid  Alexander  Addifon,  being  duly 
appointed  and  commiflioned  prefident  of  the  feveral  courts  of 
common  pleas,  in  the  circuit  confifting  of  the  faid  counties  of 
Weftmoreland,  Fayette,  Wafhington  and  Allegheny,  within  the 
territory  of  the  faid  commonwealth,  while  acting  as  prefident  of 
the  court  of  common  pleas  of  the  faid  county  of  Allegheny,  on 
Saturday  the  twenty-eighth  day  of  March,  in  the  year  of  our 
Lord,  cne  thoufand  eight  hundred  and  one,  in  open  court  of  com¬ 
mon  pleas,  then  and  there  holden,  in  and  for  the  county  laft  afore- 
faid  ;  did  after  John  Lucas,  otherwise  John  B.  C.  Lucas,  alfo 
duly  appointed  and  commiflioned  one  of  the  judges  of  the  court 
of  common  pleas,  of  the  county  laft  afore  faid,  had  in  his  official 
character  and  capacity  of  judge  as  aforefaid,  and  as  of  right  he 
might  do,  addrelTed  a  petit  jury,  then  and  there  duly  impanneled 
and  fworn  or  affirmed  refpe&ively  as  furors,  in  a  caufe  then  pend¬ 
ing,  then  and  there  openly  declare  and  fay  to  the  faid  jury,  “  that 
the  addrefs  delivered  to  them,  by  the  faid  John  Lucas,  other- 
wife  John  B.  C.  Lucas,  had  nothing  to  do  with  the  queftion  be¬ 
fore  them,  and  that  they  ought  not  to  pay  any  attention  to  it,” 


C  n  ] 


thereby  degrading,  or  endeavoring  to  degrade  and  villify  the 
faid  John  Lucas,  otherwife  John  B.  C.  Lucas,  and  his  character 
and  office  as  aforefaid,  to  the  obflruction  of  the  free,  impartial 
and  due  adminiftration  of  juftice,  and  contrary  to  the  public 
tights  and  interefts  of  this  commonwealth. 

Art.  2.  That  the  faid  Alexander  Addifon,  being  duly  ap. 
pointed  and  cpmmiflioned  prefi4ent  as  aforefaid,  did  at  a  court 
of  quarter  feffions  of  the  peace,  and  court  of  common  pleas,  hol- 
den  in  and  for  the  county  of  Allegheny  aforefaid,  on  Monday 
the  twenty-fecond  day  of  June,  in  the  year  of  our  Lord  one 
thoufand  eight  hundred  and  one,  under  the  pretence  of  difeharg* 
ing  and  performing  his  official  duties  of  prefident  as  aforefaid, 
unjuftly,  illegally  and  unconftitutionally,  claim,  ufurp  and  exer- 
eife  authority  not  given  or  delegated  to  him  by  the  conftitution 
and  laws  of  this  commonwealth,  inafmuch  as  he  the  faid  Alexan¬ 
der  Addifon,  prefident  as  aforefaid,  did  under  pretence  as  afore¬ 
faid  of  difeharging  and  performing  his  faid  official  duties,  then 
and  there  in  time  of  open  cQurt,  unjuftly,  illegally  and  unconftitu-i 
tionally,  flop,  threaten  and  prevent  the  faid  John  Lucas,  other- 
wife  John  B.  C,  Lucas,  alfo  duly  appointed  and  commiffio.ned 
one  of  the  judges  of  the  faid  courts,  from  addreffing,  as  of  right 
he  might  do,  a  grand  jury  of  the  fa'd  county  of  Allegheny,  then 
and  there  aifembled  and  impannelled  and  fworn  or  affirmed  ref- 
pedtively,  concerning  their  rights  and  duties  as  grand  jurymen, 
thereby  ahufing  and  attempting  to  degrade  the  high  offices  of 
prefident  and  judge  as  aforefaid,  to  the  denial  and  preven¬ 
tion  of  public  right,  and  of  the  due  admipiftration  of  juf¬ 
tice,  and  to  the  evil  example  of  all  others  in  the  like  cafe 
offending, 

And  the  faid  Houfe  of  Reprefentatives  by  protection  far¬ 
ing  to  themfelves  the  liberty  of  exhibiting  at  any  time  here¬ 
after  any  other  aecufatio-n  or  impeachment  againfl  the  faid 
Alexander  Addifon,  prefident  as  aforefaid,  and  alfo  of  reply¬ 
ing  to  the  anfwers  which  he  the  faid  Alexander  Addiion, 
prefident  as  aforefaid,  fhall  make  unto  the  faid  articles  or  to 
any  or  either  of  them,  and  of  offering  proof  of  the  faid  premi- 
fes  or  of  any  of  them,  or  of  any  other  accufation  or  impeach  - 
ir.ent  which  fhall  or  may  be  exhibited  by  them  as  the  cafe  fhall 
require,  do  demand  that  the  faid  Alexander  Addifon,  prefident 
«...  aforefaid,  may  be  put  to  anfwer  all  and  every  of  the  premi- 
ies,  and  that  fuch  proceedings,  examination,  trial  and  judgment 
may  be,  againfl  and  upon  him  had,  as  are  agreeable  to  the  con- 
h’tution  and  laws  of  this  commonwealth,  and  the  faid  Houfe  of 


% 

C  >8  3 


Reprefentatlves  are  ready  to  offer  proof  of  the  premifes  at  fuch 
time  as  the  Senate  of  the  faid  commonwealth  of  Pennfylvania 
{hall  appoint. 

ISAAC  WEAVER,  jun.  Speaker 

of  the  Ho ufe  cf  Reprefentatlves , 

The  Speaker  then  addreffed  Alexander  Addifon  as  fol- 
lu ALEXANDER  ADDISON,  Eso^ 


You  have  heard  the  charges  exhibited  againft  you  by  the 
Koufe  of  Reprefentatives,  and  now  depending  before  the  Se¬ 
nate,  readf 

Are  you  guilty,  or  not  guilty  ? 

Alexander  Addifon  rofe,  and  addreffed  the  Speaker  as  fol¬ 
lows,  to  wit  : 


Mr.  Speaker , 

I  wifh  to  know  whether  I  am  to  plead  to  the  articles  of  im¬ 
peachment  feparately  or  generally. 

The  Speaker  replied,  I  am  inftru&ed  to  fay,  you  are  tq 
pleacj  generally. 

Alexander  Addifon,  again  rofe  and  faid, 

I  am  not  guilty  in  manner  and  form  as  I  am  therein  chaiged. 

The  managers  made  a  verbal  requeft,  that  the  Senate  would, 
for  reafons  offered,  reconiider  the  refolution  fixing  the  time 
of  proceeding  to  the  trial  of  Alexander  Addifon,  ana  that  the 
fourth  Monday  of  January  next,  may  be  fixed  on  for  the  day 


of  trial. 

When  it  was  moved  by  Mr.  Steele,  feconded  by  Mr.  Hartzel, 

That  the  Senate  do  now  reconiider  the  refolution,  fixing 
the  time  of  trial  of  the  articles  of  apcufation  and  impeachment 
exhibited  againft  Alexander  Addifon,  by  the  Houfe  of  Repre¬ 
fentatives,  and  now  depending  before  the  Senate. 


The  yeas  and  nays  on  the  queftion,  were  called  for  by  Mr, 
Jones,  feconded  by  Mr.  Johnfton,  and  the  queftion  being  put, 
the  Members  voted  as  follows,  to  wit ; 


YEAS. 

Mr.  Gamble, 
Mr.  Hartzell, 
Mr.  Heifter, 
Mr.  Lower, 
Mr.  Lyle, 

Mr.  M’ Arthur 


NAYS. 

Mr.  Barton, 
Mr.  Ewing, 
Mr.  Findley, 
Mr.  Harris, 
Mr.  Johnfton 
Mr.  Jones, 


\ 


c 


J 


YEAS. 


NAYS. 

Mr.  Kean, 
Mr.  Lane, 


Mr.  Mewhorteri 


Mr.  Morton, 


Mr.  Richards, 


Mr.  Pearfon, 


Mr.  Steele, 


Mr.  Porter, 
Mr.  Reed, 


Mr.  Whitehill,  1 1 


Mr.  Maclay,  Speaker.  12 


So  :t  appeared  that  there  were  eleven  yeas  and  twelve  nays,- 
Hiid  tnat  tms  motion  was  determined  in  the  negative. ” 

In  the  Home  of  Reprefentatives  on  the  ift  January,  1803, 
•the  managers  having  reported  the  plea  of  Alexander  Ad¬ 
dison,  Ef quire,  the  following  refolution  was  adopted  :  “  That 
the  following  replication  be  made  to  the  plea  or  anfwer  of 
the  faid  Alexander  Addison,  EJouire ,  to  wit: 

“  The  Houfe  of  Reprefentatives  of  the  commonwealth  of 
Pennfylvania,  profecutors  on  behalf  of  themfelves  and  the  people 
01  Pennfylvania,  againft  Alexander.  Addison,  prefident  of  the 
feveral  courts  of  common  pleas  in  the  circuit  confifting  of  the 
counties  of  Weftmoreland,  Fayette,  Wafhington  and  Allegheny, 
the  territory  of  the  faid  commonwealth,  reply  to  the  anfwer  of 
the  faid  Alexander  ^Addison,  and  aver  that  the  charges  a^ainlt 
the  faid  Alexander  Addison  are  true,  and  that  the"  faid 
Alexander  Addison  is  guilty  of  all  and  every  the  matters 
Contained  in  the  articles  of  accufation  and  impeachment,  by  the 
late  Houfe  of  Reprefentatives,  exhibited  againft  him,  in  manner 
and  form,  as  they  are  therein  charged,  and  this  the  prefent 
Houfe  of  Reprefentatives  are  ready  to  prove  againft  him,  at  fuch 
convenient  time  and  place  as  the  Senate  fhall  appoint  for  that 
purpofe.” 

And  on  the  17th  January  the  Houfe  of  Reprefentatives 
would  in  committee  of  the  whole,  attend  in  the  Senate  cham¬ 
ber  during  the  trial  of  the  impeachment. 

In  the  Senate  on  the  13th  January,  1803,  a  committee  was 
appointed  to  report  a  form  of  an  oath  or  affirmation  to  be 
taken  by  the  Senators  when  fitting  in  their  judicial  capa* 
city  on  the  trial  of  Alexander  Addifon.  On  the  14th  this 
committee  reported  the  following  form  of  an  oath  : 

I  do  fwear  (or  affirm)  that  I  will,  well  and  truly,  try 
the  fa6ts  ftated  in  the  articles  of  accufation  and  impeachment, 
exhibited  to  the  Senate,  by  the  Houfe  of  Reprefentatives, 
againft  Alexander  Addifon,  or  which  may  be  further  exhi¬ 
bited  againft  him,  and  a  true  judgment  give  according  to 
the  evidence.” 


j*  29  ] 

'  f  ^ 

tills  was  adopted.  But  on  the  15th  January,  on  motiol 
to  reconfider,  the  form  of  the  oath  was  altered  and  adopted 

as  follows  : 

«  1  do  fwear  (or  affirm)  that  I  will,  well  an  d^  truly  try,' 
and  a  true  judgment  give  according  to  law  and  evidence,  be* 
tween  the  commonwealth  of  Pennfylvania  ana  Alexander  Ad- 
difon,  upon  the  articles  of  accufation  and  impeachment,  ex¬ 
hibited  againft  him,  and  now  depending  before  the  Senate.’ 

On  January  1 7th,  the  Senate  refolved,  for  accommodation 
of  the  citizens,  to  meet  in  their  judicial  capacity  on  the  trial 
of  Alexander  Addifon  in  the  chamber  of  the  Houfe  of  Re- 
prefentatives,  if  that  Houfe  ffiould  think  proper  to  offer  thi 
ufe  thereof  for  that  purpofe.  This  the  Houfe  of  Reprefen- 
tatives  did. 

A  letter  from  Alexander  Addifon,  Efquixs ,  was  read,  af= 
ter  which  the  Senate  left  their  chamber. 


\ 

- 

- 


— . m  — — —  ■ 

- 

THE  Senate  fraying  aflembled  in  the  chamber  of  the  Houfe 
»f  Reprefentatives  in  confequence  of  a  requeft  of  the  Houfe, 
£s  the  moil  commodious  room  to  accommodate  both  houfes, 
and  the  citizens  who  appeared  generally  defirous  of  attend¬ 
ing  the  proceedings  on  the  impeachment. 

On  calling  over  the  names  of  the  Senators,  the  following 
gentlemen  anfwered  to  their  names,  viz. 

Aaron  Lyle, 

William  M’ Arthur, 

Thomas  Mewhorter, 
Thomas  Morton, 

John  Pearfon, 

John  Porter, 

William  Reed, 

John  Richards, 

William  Rodman, 

John  Steele, 

Robert  Whitehill, 

Samuel  Maclay,  Speaker. 

Mr.  Samuel  Maclay,  Speaker  of  Senate,  called  the  atten¬ 
tion  of  the  Members  of  that  body,  to  a  letter  juft  received  from 
Alexander  Addifon,  addreffed  to  him  as  Speaker  of  the  Senate. 
He  directed  Mr.  George  Bryan,  clerk  of  the  Senate  to  read  the 
fame  ;  it  was  as  follows  : 


Mathias  Barton, 
James  Ewing, 

I  William  Findley, 

James  Gamble, 
James  Harris, 
Jonas  Hartzell, 
John  Heifter, 
Thomas  Johnfton, 
John  Jones, 

John  Kean, 

Prefly  Carr  Lane, 
Chriftian  Lo^  rer, 


SIR, 


Lancajler ,  January  17th ,  1805. 


I  beg  leave  to  ftate  to  the  Senate,  that  I  am  informed  there 
are  now  in  the  Senate  certain  members,  who  were  members  of 
the  Houfe  of  Reprefentatives,  when  that  Houfe  refolved  to  pro- 
fecute  the  impeachment  againft  me,  and  that  they  voted  on  that 
queftion. 


The  analogy  of  all  our  proceedings,  and  a  due  regard  to  a  pure 
and  impartial  adminiftration  of  juftice,  requires  that  parties 
fhould  come  forward  to  the  proper  tribunal,  with  a  juft  confi¬ 
dence,  that  none  of  the  judges  have  previoufly  exercifed  their 
judgement  on  the  queftion.  If  this  were  not  the  cafe,  the  par¬ 
ties  would  ftand  in  a  very  aukvvard  fituation,  when  they  could 
point  out  fome  ot  their  judges  who  had  previoufly  determined 
#gain  ft  them, 


D 


[  22  ] 


In  the  cafe  of  a  trial  at  law  in  the  ordinary  courts,  no  grand 
Juror  would  be  permitted  to  fit  as  a  traverfe  juror  on  the  fame 
|ndf  Ament. 

In  the  Britilh  parliament — If  any  member  of  the  houfe  of 
commons,  who  had  voted  on  an  impeachment,  were  before  the 
trial  made  a  peer,  I  humbly  prefume  he  would  withdraw  from 
the  trial. 

I  have  no  concern  in  this  cafe,  but  that  a  due  regard  to  the 
adminiftration  of  juftice  be  had,  and  therefore  refpeAfully  fub- 
?nit  this  to  the  Senate,  and  the  individual  members. 

I  am  with  due  refpeA* 

Your  moll  obedient  fervant, 

ALEXANDER  ADDISON. 

Honorable  Samuel  Maclay ,  Elquire,  *) 

Speaker  of  the  Senate.  y 

Mr.  MACLAY,  Speaker . 

Shall  Mr.  Addifon  be  heard  in  fupport  of  the  fentiments  es> 
prelfed  in  that  letter  \ 

Mr.  WHITEHILL. 

I  do  not  wifti  to  prevent  the  gentleman  from  being  heard, 
when  it  is  reafonable  that  he  fhould  be  heard,  therefore  if  it  is 
his  requell  to  be  heard  on  this  fubjeA,  1  for  one,  lhall  be  in  favor 
of  granting  him  the  liberty  ;  and  if  a  quellion  is  taken,  1  {hall 
certainly  vote  for  it. 

Mr.  MACLAY,  Speaker. 

If  it  be  the  wifh  of  Mr.  Addifon,  there  ought  to  be  a  motion 
made  for  leave,  on  which  the  queftion  may  by  put. 

Mr.  WHITEHILL. 

I  therefore  move,  that  Mr.  Addifon  be  heard  in  fupport  of, 
his  letter  to  the  Speaker, 

The  Senate  agreed  to  the  motion. 

'  '  Mr.  ADDISON. 

Jl Ir.  Speaker . 

I  imagine  from  what  was  faid  by  fome  of  the  members,  in  the 
penate  Chamber  before  they  came  down  flairs,  that  the  intention 
of  my  llatement  was  millaken — It  ieemed  to  be  linderllood  as  a 
perfonal  objeAion  to  the  members  alluded,  but  that  was  not  my 
View.  The  only  thing  I  had  in  view  was  this  : — that  in  my  cale 


no  precedent  for  future  profecutions  lhall  be  fet,  that  I  think  im¬ 


proper,  without  Hating  that  it  has  my  cenfure.  I  would  not  be 
knifunderllood — I  do  not  Hate  my  objeAion  to  the  gentlemen, 
may  be  in  the  fituation  I  have  alluded  to,  from  perfonal 

•i  .  .  '  t 


l  n  3 

ihotives.  No  Sir,  I  addrefs  it  to  the  Senate  in  general,  who  ard 
the  proper  guardians  of  their  own  honor,  and  protedlors  of  their 
own  proceedings,  and  to  the  individual  Members  only,  as  the  jud< 
ges  of  their  own  feelings. 

Whether  the  Senate  direct  them  to  withdraw  or  remain,  or 
whether  they  withdraw  of  their  own  accord,  mull  be  fubmitted 
as  I  laid  before  ^  to  the  Senate  and  themfelves. 

Mr.  STEELE. 

The  reafon  that  I  made  any  remark  on  the  fubjeft  of  this 
letter  when  it  was  firlt  read  up  Hairs,  arofe  from  a  fufpicion* 
that  from  the  very  circumftance  of  the  addrefs  at  this  time 
there  was  an  implied  objection  in  it,  oh  the  part  of  the  defen¬ 
dant,  td  my  fitting  oil  this  trial,  as  I  was  a  Member  of  the 
late  Houfe  of  Reprefentatives  which,  prefented  the  impeach¬ 
ment.  In  order  to  try  the  fenfe  of  the  Senate,  and  from  a 
wilh  not  to  create  in  the  mind  of  an  individual,  an  unealinefs 
that  may  cripple  his  defence  on  his  trial,  I  dlk  permifiidn  td 
withdraw  myl'elf  from  the  Senate  ’till  the  trial  is  finifhed. 

§  Mr.  GAMBLE, 

Seconded  the  motion. 

Mr.  KEAN. 

I  hope  the  Member  will  not  obtain  leave  to  withdraw.  Look 
Sir,  at  the  effedl  fuch  a  precedent  would  produce  in  ail  future 
proceedings  on  impeachment.  The  conllitution  requires  annu¬ 
ally  a  new  election  for  one  fourth  of  the  Members  of  the  Se¬ 
nate,  and  further  that  two  thirds  mull  zfgree  to  convict  on  im¬ 
peachment  }  if  then  by  death  or  refignation  one  third  of  this 
body  had  been  elefted  this  year  from  the  Members  of  the  other 
Houfe  of  lall  year,  it  would  be  impofiible  to  proceed,  and  thereby 
the  public  juliice  required  at  our  hands*  would  be  totally  de¬ 
feated.  I  do  not  underhand  the  reafon  why  he  wilhe^  to  with¬ 
draw  {  it  is  true  he  was  a  Member  of  the  Houle  which  framed 
the  impeachment ;  but  he  was  not  a  Member  of  the  Senate,  at: 
that  time,  and  the  Senate  then  decided  that  the  prefent  Senate 
fhould  try  the  caiife  ;  the  conllitution  mull  be  obeyed  ;  in  its 
language  it  is  imperative  “  the  Senate  Jloall  try.”  If  the  Gen¬ 
tlemans  excufe  is  a  refpe£l  for  his  own  feelings,'  I  fay  that  every 
gentleman  prefent  would  be  glad  if  his  attendance  could  conlli- 
tutionally  and  honorably  be  difpenfed  with  cn  fuch  unpleafant 
occafion3  ;  few  men  are  inclined  to  fit  on  trials  of  this  kind  ;  but 
when  they  find  it  their  duty,  they  mull  conform.  I  hope  there-' 
fore  the  Senate  will  not  permit  the  Member  to  withdraw* 

Mr.  FINDLEY. 

•  •  «  t 

1  fhottld  be  glad  to  know  if  there  are  any  precedent^  wliicH 


t  *4  3 

would  apply  to  this  cafe.  I  do  not  know  whether  the  chairmaaf 
of  a  grand  jury,  who  had  figned  a  bill  of  mdi&ment  againd  a 
criminal  at  one  term,  which  was  not  tried,  could  net  fet  as  a  tra- 
verfe  juryman  upon  the  trial  at  the  next  term,  if  a  frefh  prefenta- 
tion  was  made.  I  do  not  know  what  is  the  caie  of  the  peers  in 
in  England,  whether,  if  they  had  been  members  of  the  houfe  of 
commons,  which  had  preferred  an  impeachment  to  the  lords, 
fuch  peers  were  excluded  by  the  houfe  or  excluded  themfelves, 
upon  the  trial.  I  fhould  be  glad  to  hear  what  the  precedents  are 
on  this  fubjed  ;  not  that  I  mean  to  fay,  precedents  ought  to 
govern  us,  but  furely  they  would  throw  iome  additional  light 
upon  the  mode  of  proceeding.’ 

Mr.  WHITEHILL. 

I  obferve  that  the  managers  on  the  part  of  the  Houfe  of  Re- 
prefentatives  are  prepared  with  counfel,  gentlemen  learned  in  the 
law,  I  fhould  therefore  be  glad  to  hear  from  them,  what  can  be 
faid  on  this  point.  It  is  a  new  cafe,  and  mod  of  the  members 
would  be  glad  to  hear  their  opinion  before  we  determine  the 
quediori.  Suppofe  the  gentlemen  who  are  in  a  fimilar  lituatioit 
with  the  member  from  Lancader,  are  all  permitted  to  withdraw, 
the  precedent  may  be  attended  with  the  mod  unhappy  confe- 
quences  ;  no  perfon  hereafter  could  be  impeached  one  year  and 
tried  the  next,  becaufe  there  would  be  a  great  change  in  the  Sen¬ 
ate,  fo  as  to  defeat  the  objeft.  A  due  confideration  at  this  time, 
may  prevent  the  edablifhment  of  a  precedent,  which  may  prove 
injurious  hereafter.  Let  us  therefore  hear  the  counfel,  that 
when  we  have  heard  them,  we  may  come  to  a  conclufion, 
which  we  hope,  may  be  a  happy  one  for  the  State,  as  well,  as 
for  the  gentleman  to  be  tried. 

Mr.  MACLAY,  Speaker. 

Certainly  if  the  managers  on  the  part  of  the  Houfe  of  Repre- 
fentatives  are  defirous  of  being  heard  by  couniel,  there  can  be  no 
doubt  but  the  Senate  will  indulge  them. 

Mr.  FERGUSON. 

As  one  cf  the  maaagers  on  the  part  of  the  Houfe  of  Repre- 
fentatives,  I  have  to  inform  the  Senate,  counfel  is  employed 
on  their  behalf,  and  are  at  prefent  ready  to  afhd  them  oh 
the  prefent  occafion. 

Mr.  DALLAS. 

Mr.  Speaker ,  and 

Gentlemen  of  the  Senate^ 

THE  talk  I  have  undertaken  in  confequence  of  the  re- 
qued  of  the  managers  of  this  impeachment  on  the  part  oi 
the  Houfe  of  Reprefentatives  is  a  weighty  one  j  but  the  ina- 


pcrtance  of  the  occafion  ought  to  acquit  me  from  the  fuff- 
picion  of  engaging  in  it  from  motives  of  hoftility  to  the  de¬ 
fendant.  1  have  no  wifh  but  that  the  trial  may  be  carried 
on  with  every  delicacy  to  ‘the  feelings  of  the  Gentleman  who 
Is  its  ob;e£l  ;  and  on  the  part  of  the  managers  I  can  fay  fuch 
a  mode  would  harmonize  with  their  feelings.  I  am  perfedlly 
aware  of  the  correct  difpofition  of  the  Houfe  as  to  this  point, 
all  however  are  limited  in  the  wifh,  that  the  trial  fhall  be  fatis- 
fa&ory  and  fair.  Whatever  may  be  the  decifion  of  the  Se¬ 
nate  on  the  final  queftion,  or  the  effect  upon  the  Gentleman, 
who  is  the  object  of  accufation,  We  fhall  acquiefe  with  plea-* 
fure.  We  think  the  individual  Members  are  fuperior  to  any 
bias  whatever.  If  they  decide  from  an  indulgence  to  the  feel¬ 
ings  of  the  Gentlemen,  who  did  properly  give  their  opinion 
on  this  impeachment  laft  year  in  the  Houfe  of  Reprefenta- 
tives,  that  they  fhall  be  excufed  from  being  fworn  on  the  trial, 
we  fhall  be  juftified,  becaufe  we  believe  that  the  ultimate  deci¬ 
fion,  whether  made  by  a  greater  or  leffer  number  of  this  body, 
will  comport  with  law  and  juftice.  Under  thefe  imprefiions,  I 
fhould  have  remained  filent,  becaufe  the  decifion  either  way, 
would  have  been  fatisfaeftory  to  the  managers  and  their  counfcl  ; 
but  as  the  Members  of  the  Senate  have  expreiTed  a  wifh  to  hear 
our  general  ideas  on  this  point,  I  will  detail  them  without  any 
anxiety  as  to  the  iffue. 

The  grounds  in  general  of  the  common  law,  are  that  any 
perfon  who  has  paffed  his  opinion  under  oath  on  the  point  in 
controverfy,  is  precluded  from  fitting  in  judgment  in  the  cafe  $ 
I  believe  alfo,  that  where  a  perfon  has  volunteered  his  opinion, 
and  decided  on  a  caufe,  tho’  not  on  oath,  it  would  be  ground 
of  challenge.  It  is  only  juftice  to  Mr.  Addifon’s  claim  to  make 
this  conceflion.  But  here  are  grounds  to  diftinguifh  this  cafe. 
It  will  be  recolle&ed,  that  in  the  ordinary  tribunals  of  juftice, 
the  grand  jurors,  the  petit  jurors  and  the  judges  are  ad  confti- 
tuent  members  of  the  court,  that  they  all  muft  concur  in  the 
refult  of  guilty  or  not,  and  all  are  bound  by  a  fpecial  oath  to 
difeharge  their  duties  refpe&ively,  as  they  are  aftigned  to  them. 
This  is  not  the  cafe  on  impeachment  ;  the  Houfe  of  Reprefcn- 
tatives  are  not  called  upon  under  an  oath  peculiar  to  the  im¬ 
peachment,  hut  make  the  prefentation  to  the  Senate  merely  as  a 
part  of  their  legifiative  duty.  Certain  feels  are  communica¬ 
ted  to  them,  and  they  arc  examined  without  taking  an  oath 
of  office  ;  if  they  conclude  that  the  perfon  complained  of, 
has  mifdemeaned  himfelf  in  his  office,  they  accufe  him. — Here 
is  the  leading  diftin&ion.  In  the  cafe  of  a  grand  juryman, 
he  is  called  upon  to  examine  and  preient  under  the  obligati- 


t  26  3 

©tt  of  an  oath,  pointed  to  that  particular  fubjedl  ;  the  Houle 
adls  merely  in  its  legiflative  capacity,  and  performs  a  confti- 
tutional  injunction  in  preferring  the  fubject  to  the  Senate. 

The  remarks  of  the  Member  from  Dauphin^  (Mr.  Kean) 
mull  have  ftruck  the  minds  of  gentlenien  very  forcibly  ;  the  in- 
convenienies  he  fuggefled  are  obvious,  and  the  idea,  if  purfued 
in  the  abllradt,  and  its  confequencec,  will  prove  to  our  minds* 
that  the  principle  contended  for  by  the  defendant,  would  defeat 
the  object  of  impeachment  altogether.  11  then  there  is  no  pre¬ 
cedent,  and  the  refill l  would  be  fo  abfurd,  we  ought  to  rejedf 
fuch  an  opinion. 

It  may  happen  as  our  eleflions  are  annual,  and  one  fourth 
bf  the  Members  of  the  Senate  go  out  every  year,  that  in 
a  period  of  four  years  every  Member  of  the  Senate  may  have 
been  a  Member  of  the  Houfe  of  Repr’efentatives,  that  pre¬ 
ferred  an  impeachment  ;  we  know  alio  from  the  hiilory  of 
foreign  countries,  out  own  State  and  of  the  United  States,- 
that  °profecutions  may  be  protracted  for  three  or  four  years* 
and  often  are  unavoidably  piotracled  for  that  time  ;  mould 
this  impeachment  fad  into  that  predicament,  I  do  not  neli** 
tate  to  fay  upon  the  principle  contended  for,  that  the  pub¬ 
lic  juft  ice  would  be  altogether  defeated  ;  we  mull  not  there¬ 
fore,  give  a  conftruction  that  would  produce  fo  ruinous  an 
effect. 

Mi*':  Addifon  fuggeffs*  that  the  peers  in  England  Would 
not  lit  upon  trials  which  had  been  militated  whilft  they  had 
been  Members  of  the  Commons.  It  is  likely  that  he  is  mif- 
taken  in  the  cafe.  The  celebrated  and  recent  trial  of  Warren 
Hading,  laded  feven  years  ;  during  that  period  no  doubt  ma¬ 
ny  peers  were  created  ;  fuch  has  been  the  policy  of  the  mi- 
nider  to  incVeafe  his  patronage,  and  no  doubt  but  many. of  thent 
were  Members  of  the  Houfe  which  exhibited  the  charge  a- 
gaind  Mr.  Hadings  ;  many  other  Members  of  the  Common* 
became  peers  by  defeent  during  the  fame  period,  and  the/ 

I  am  not  prepared  to  affert,  that  thofe  peers  did  actually  vote 
on  the  decifron  of  the  trial,  yet  I  think  it  prefumable,  that 
they  did  from  the  number  and  from  the  mode  adopted  by  that 
body,  by  calling  over  the  name  of  each  peer  from  the  lili  whoi 
is  individually  bound  to  give  his  verdi 61  in  his  place,  and  from 
the  well  known  consequence  of  that  trial  on  acquitaly  however 
the  defendant  has  not  hewn  us  any  difference  in  that  Koule  at 
a  precedent  for  the  Senate. 

If  thefe  general  ideas  can  furmfh-  information  to  the  minds  of 
the  Members,  I  fhall  feel  rhy  fell  happy  in  having  detailed  themT 


C  *7  ] 


but  my  wifli  is,  they  would  exercife  their  own  judgment.  I 
look  upon  the  prefent  qutftion  as  deciding  the  principle  and 
precedent,  without  any  regard  to  the  efredl  it  map  have  in  Mr. 
Addifon’s  cafe,  who  I  believe  has  brought  the  objection  for¬ 
ward,  not  from  a  defne  to  cavil  or  be  litigious,  bit  to  fettle  a 
quejlion  he  thinks  important. 

Mr.  Jlddifon. — So  far  from  being  difpofed  to/fliew  an  exam¬ 
ple  of  litigioufnefs,  I  fhall  wave  the  light  of  repbmg  particularly 
to  the  arguments  of  the  counfel.  1  beg  again  o  alfure  the  Se¬ 
nate  and  the  Members  alluded  to,  particularly,  that  it  was  not 
from  any  perfonal  motives  I  made  the  objeclon.  I  will  not 
make  a  particular  anfwer  to  the  ccmparifon,  which  has  been 
made  between  grand  and  petit  juries  and  the  loufe  of  Repre- 
fentatives  and  the  Senate  ;  but  I  fay  generally  that  the  analogy 
holds  in  all  its  points,  and  whether  they  are  ona  particular  oath 
or  not,  the  Members  of  the  Houfe  are  bound  >y  the  ftrongeft 
ties  of  duty  and  of  confcience,  to  find  an  impediment  on  pro¬ 
per  grounds,  as  a  grand  jury  is  bound  to  find  n  indictment  ;  I 
lay  the  analogy  is  complete,  and  where  thre  is  not  proper 
ground  of  impeachment  or  indictment,  neithe  body  are  bound 
to  do  either. 

With  refpeCt  to  the  cafe  of  Warren  Hdings,  I  am  not 
informed,  neither  is  the  counfel  ;  he  fays,  tat  during  the  fe~ 
ven  years  it  was  depending,  many  peers  my  have  been  cre^ 
ated,  and  fome  became  peers  by  defcent,  i  is  true  ;  but  can 
fie  tell  us,  whether  thefe  new  peers  vote  on  the  impeach¬ 
ment  in  the  Hoyfe  of  Lords,  and  whethf  they  were  Mem¬ 
bers  of  the  Commons  and  voted  in  that  loufe  in  favor  of 
preferring  the  impeachment.  No  Sir,  h<  cannot  ;  and  that 
is  the  point  in  queftion  here.  1  prefume  hey  did  withdraw 
becaufe  I  conceive  it  confiftcnt  with  themunicipal  law  and 
natural  juftice,  that  when  men  are  to  decde  upon  an  offence, 
they  ought  to  come  forward  for  the  firfLime,  and  not  have 
pledged  themfelves  by  a  previous  decifio’.  I  am  not  difpof¬ 
ed  to  cavil  or  be  litigious  ;  I  merely  mac  the  ftatement  that 
the  Senate  might  look  to  their  own  haor,  and  the  Mem¬ 
bers  to  their  own  individual  feelings. 

The  queftion  was  now  taken,  [hall  Mr.  Steele  have  leave 
to  withdraw  Pv 

The  floor  of  the  chamber  was  fo  fille  by  the  Senate,  by  ♦ 
the  Members  of  the  Houfe  of  Reprefentaives,  and  a  numerous 
body  of  citizens,  that  the  vote  could  nc  be  taken  the  ufual 
way,  viz.  by  the  Members  fevcrally  ring  in  the  affirmative 
and  negative,  as  they  were  inclined  to  vee  ;  therefore  the  clerk 


C  28  ] 

was  diredted  to  call  over  the  names  of  the  Members  of  the  Se«j 
nate. 

Mr.  GAMBLE, 

Who  was  n  the  like  fituation  with  Mr.  Steele,  voted  in  fa¬ 
vor  of  the  m)tion, 

Mr.  LYLE, 

Whofe  fituaion  was  fimilar,  wifhed  to  be  excufed  from  vo¬ 
ting  on  the  quelion,  and  he  was  excufed  nem.  con. 

The  queftioi  was  determined  in  the  negative,  yeas  6, 
nays  17. 

The  following  oath  or  affirmation  was  then  adminiftered  to 
each  Senator  wb  had  anfwered  to  his  name,  by  Andrew  Graff, 
Efq.  affociate  udge  of  the  common  pleas,  for  Lancaiter 
county. 

I  do  fwear,  (r  folemnly,  fincerely,  and  truly  declare,  and 
affirm)  that  I  wil,  to  the  beft  of  my  ability,  well  and  truly 
try  and  a  true  jdgment  give,  agreeably  to  the  conftitution  and 
laws,  and  the  evience,  between  the  commonwealth  of  Pennfyl- 
vania  and  Alexader  Addifon,  on  the  articles  of  accufation  and 
impeachment  exfbited  by  the  Houfe  of  Representatives,  of 
the  faid  commonwealth,  againfl  him,  and  pending  before  the 
Senate. 

Mr.  Maelay ,  beaker. — Are  the  managers  now  prepared  t® 
proceed  in  the  pnjecution  of  this  impeachment  ? 

Mr.  FERGUSON. 

I  am  inflrufted  to  fay,  that  the  managers  are  prepared. 

Mr.  George  Bryn,  Clerk  of  the  Senate,  was  hereupon  di¬ 
rected  by  the  Speaier  to  read  the  articles  of  profecution  and 
impeachment,  for  ffiich  fee  pages  1 6,  1 7  and  1 8. 

Mr.  M’Kean ,  rquefled  that  the  plea  of  the  defendant  and 
replication  on  the  prt  of  the  managers  might  be  read  ;  which 
being  done, 

Mr.  M’  Kean - Mr.  Speaker,  and  Gentlemen  of  the  Senate > 

Having  been  unxpeftedly  called  upon  by  the  managers  of 
this  profecution,  on  he  part  of  themfelves  and  of  the  Houfe, 
and  the  chairman  of  he  committee  being  prevented  by  an  a o 
cident  from  attending  at  this  time.  I  fhall  proceed  to  open 
the  evidence  in  his  alienee,  not  perhaps  with  fo  much  accura¬ 
cy  as  I  might  have  doe,  had  J  had  the  the  advantage  of  his 
affiftance.  I  fhall  hcvever  endeavor  to  Hate  the  charges  as 
they  are  in  fubftance  z  briefly  as  1  can,  and  then  apply  the 
evidence  minutely  to  Ipport  them  refpedtively. 


[  ^9  ] 


(The  charges  were  here  flated  ;  but  to  avoid  a  repitition* 
the  editor  refers  to  page's  16  and  18,  where  they  afe  at  length.) 

The  evidence  which  will  be  adduced,  will  prove,  I  have  no 
douot,  to  the  fatisfaclion  ct  the  Senate,  the  truth  of  the  charge 
nearly  in  the  words  as  laid  in  the  articles  of  impeachment,  and 
that  the  manner  of  Mr*  Addifon’s  condutl  on  the  occalion, 
mentioned  in  thedirft  charge,  was  calculated  to  leffen  the  ref- 
pe£t  due  to  an  affociatC  judge  of  that  court,  and  to  render  his 
Opinion  both  then  and  thereafter  of  little  of  no  avail* 

In  fupport  of  the  feco'nd  charge,  it  will  appear  in  evidenced 
that  on  the  2 ad  of  June,  1801,  a  court  of  common  pleas  wa^ 
Held  in  and  for  the  county  bf  Allegheny  ;  that  Mr.  Addifon 
fat  there  as  preilding  judge,  and  in  the  morning  of  that  day, 
Mr.  Lucas  was  the  only  afiociate  on  the  bench*  After  judge 
Addifon  had  delivered  his  charge  to  the  grand  jury,  Mr.  Lucas 
not  being  fatisfied  on  this  head,  wifhed  to  deliver  his  opinion 
on  feme  matter,  not  adverted  to  by  Mr.  Addifoni  Mr.  Lucas 
£rofe  to  addrefs  the  grand  jury  ;  that  when  he  arofe.  Mr.  Ad- 
difon  took  hold  or  his  arm  and  defired  Mr.  Lucas  to  Communi¬ 
cate  to  him  trie  fubjedt  he  wanted  to  deliver  to  the  jury.  Mri 
Lucas  told  him,  that  he  did  not  confider  it  riecefiary,  and  then 
made  another  attempt  to  addrefs  the  grand  jury]  and  infilled 
on  his  right  to  deliver  his  charge.  Mr.  Addifon  delired  him 
io  defift  and  poftpone  the  matter  until  a  cdnftable  tvas  fworn  to 
attend  the  grand  jiiry.^  Mr.  Lubas  refiifed  and  faid,  now  is 
the  proper  time  to  deliver  my  charge,  and  again  made  the  at¬ 
tempt,  and  was  again  interrupted  by  the  prefident,  aS  he  had 
been  in  every  attempt  heretofore  made.  At  length  a  Conftabl’e 
was  feledied  to  attend  the  grand  jury,  and  even  after  this,  Mr* 
Lucas  attempted  to  addrefs  the  jury,  but  was  ftill  oppofed  by- 
judge  Addifon,  who  infilled  oil  knowing  what  he  intended  to 
lav.  Mr.  Lucas  then  to  avoid  further  contention,  offered  Mr; 
Addifon  the  contents  of  the  charge  he  had  in  his  hand  ;  but 
[this  Mr.  Addifon  would  neither  accept  or  read,  when  present¬ 
ed.  Mr.  Lucas  once  more  attempted  to  addrefs  the  grand  ju¬ 
ry,  when  Mr.  Addifcin  told  Mr.  Lucas  that  they  ought  to  ad¬ 
journ,  and  to  the  jury  he  faid,  they  might  flay  or  go,  as  they 
pleafed;  he  hereafter  faid,  he  would  adjourn  the  Court,  and 
then  declared  aloud,  that  fo  far  as  depended  upon  him  the  court 
fras  adjourned.  After  leaving  the  court,  he  turned  and  repeat¬ 
ed,  that  the  court  might  confider  itfelf  adjourned  ’till  3  o’clock 
in  the  afternoon.  It  will  be  Ihevvrf,  that  at  that  time,  there 
were  only  two  judges  on  the  bench,  and  the  confent  of  both  in 
iuch  a  cafe  was  necefTary  to  the  adjournment.  The  gentlemen 

E 


i1 


[3  o  T 

of  the  bar  and  the  jury  hereupon  retired,  and  Mr.  Lucas  was 
obliged  of  courfe  to  leave  the  bench. 

In  the  afternoon  of  the  fame  day,  when  the  court  met,  it 
confifted  at  firit  of  the  prefident  and  the  affociate  judge  Lucas. 
Mr.  Lucas  told  the  prefident,  that  he  ftiU  perhfted  m  hi® 
right  to  addrefs  the  grand  jury,  and  wiihed  to  fend  for  judge 
M’Dowell.  Mr.  Addifon  replied,  that  he  had  juil  *ent  for 
Mr.  M’Dowell;  judge  M’Dowell  came  in  a  few  minutes  af¬ 
ter,  and  judge  Lucas  related  to  him  what  had  palled  in.  t  le 
mornino-,  and  told  him  his  determination  to  addrefs  the  jury, 
Mr.  MDowell  anfwered,  that  he  was  not  prepared  to  give  a 
decifion,  and  wiihed  a  poftponement  of  the  fubjeA  tnl  an¬ 
other  time,  when  there  might  be  a  fuller  court.  Mr.  Lu¬ 
cas  would  not  agree  to  the  poftponement,  .aying  that  he  had 
a  right  to  deliver  his  opinion  to  the  grand  jury,  and  that 
he  thought  the  prefent  time  the  proper  time.  The  grand 
jury  being  colleAed  in  their  box,  Mr.  Lucas  addreffed  them, 
and  began  to  read,  whereupon  the  prefident  called  out :  Si¬ 
lence  iir,  Hop  fir.  Mr.  Lucas  Hopped  for  a  moment,  and 
began  again.  Mr.  Addifon  then  faid  :  I  took  upon  me  to 
Hop  you  on  one  occafion  at  my  own  rifle,  and  am  amweia- 
ble  for  the  confequences,  and  if  you  do  not  now  dehit,  we1 
will  take  means  to  make  you  ;  that  this  threat  induced  P  Ir, 
Lucas  to  conclude,  that  it  was  the  judge’s  intention  to  commit 
him  to  prifon  ;  it  feemed  incapable  of  any  other  conftruAion. 
Mr.  Lucas  being  thus  prevented  from  delivering  Ins.  opinion 
to  the  jury,  and  having  perfiited  in  his  claim  o,  right  till 
the  laft  moment,  he  was  compelled  to  retire,  and  did  letire 

from  the  bench. 

If  this  fecond  charge  fhould  be  proved,  as  I  am .  convinced 
ft  will  be,  the  defendant  has  been  guilty  of  a  high  mifdemeanor 
in  office,  and  ought  to  fuffer  the  confequences.  T^e  brit 
charge  perhaps  might  not  of  itfelf  amount  to_  fuch  an  high 
offence,  if  it  flood  alone  ,'  But  as  connected  with,  the  fecond, 
it  is  of  great  weight  and  importance,  and  flews  in.  the  pre.i- 
dent  a  difpofition  to  tyrannize  over  and  opprefs  his  brethren 
on  the  bench  ;  and  it  muff  be  inferred  from  the  circumflances, 
the  manner  and  general  conduA,  that  there  was.  in  the  mind  A 
the  prefident  a  defperate  and  determined  hofti  lty  to  his  alio- 
ciate,  and  that  on  every  occafion  he  carried  it  into  execution 
upon  this  arbitrary  condu A  and  perfection  ;  we  fay  upon  tne 
general  principle  that  ail  oppreffions  in.  office  are  crimes  ot  a 

public  nature  ;  oppreffive  and  tyrannical  conduA  m  judge® 
is  eonfidered  as  of  deep  malignity. 


i 


[  31  3 

Offences  under  colour  of  office,  efpecially,  committed  m  offi- 
ces  of  fuch  high  truft,  have  always  been  confidered  as  the  molt 
proper,  and  of  courfe  the  ufual  ground  of  impeachment.  I  hey 
are  fuch  as  the  ordinary  magiftrates  cannot  or  dare  not  punuh, 
or  if  they  could,  probably  they  would  not.  It  often  Happens 
that  officers  may  and  do  abufe  their  power,  to  the  injury  of  the 
commonwealth,  and  at  the  fame  time  in  fuch  a  manner  as  not  to 
render  their  condudt  cognizable  before  the  ordinary  tribunals  of 
juftice,  fo  as  to  procred  by  indictment  or  information. 

An  attempt  to  fubvert  the  fundamental  laws  of  a  court  of  juf¬ 
tice  is  a  fit  fubject  of  impeachment.  So  in  this  caie  Mr..  Addi- 
fon  reft  raining  his  affociate  judge  from  the  exercife  of  his  legal 
right,  and  endeavoring  to  eftabliffi  arbitrary  power,  in  himieit 
has  committed  a  high  mifdemeanor  in  office,  and  has  attempted 
to  fubvert  the  fundamental  laws  of  the  country,  and  ac.ed 
greatly  contrary  to  the  duties  of  his  office. 

We  {hall  (hew  after  the  evidence  is  clofed  what  are  the  confti- 
tutional  powers  of  this  court,  and  that  Mr.  Addifon,  as  presi¬ 
dent,  is  not,  as  was  faid  on  that  occafion  the  foie  organ  of  the 
court  We  {hall  fhew  that  he  does  not  poffefs  the  exciufive  right 
to  charge  the  grand  jury.  If  from  ignorance  or  other  mo¬ 
tives,  he  miftakes  or  miftates  the  law,  it  is  not  orny  the  right, 
but  it  is  the  bounden  duty  of  the  afTociates  to  diffent  from  and 
correa  him.  Such  affociates  are  bound  not  only  to  exprels 
their  fentiments,  but  they  ought  to  give  the  reasons  ot  their 
opinion,  that  the  jury  may  judge  which  is  right.  \'  e 
contend  that  if  the  prefident  affumes  the  power  of  preventing 
his  affociate,  as  Mr.  Addifon  did  on  this  occahon,  that  it  is  a 
violation  of  public  law,  an  ufurpation  of  power,  an  abuie  ot 
authority,  and  a  high  mifdemeanor  in  office.  We  lhall  now  pro¬ 
duce  ceftimony  in  fupport  of  the  charges  as  they  are  laid. 

But,  f.rfl,  will  it  be  admitted  that  Mr.  Addifon  is  duly  conj- 
miffioned  prefident  of  the  court  of  common  pleas,  and  Mr.  lm- 
cas  an  affociate  judge  ? 

Mr.  Addifon.  I  admit  all  thofe  things,  Sir. 

John  B.  C.  Lucas  was  called  and  fworn. 

Mr.  Dallas.  Did  you  attend  the  court  of  common  pleas  for 
the  county  of  Allegheny  on  the  28th  March  101. 

Air.  Lucas.  1  did. 

Mr.  Dallas.  Was  there  an  aaion  tried  at  that  time  in  which 
you  gave  an  opinion  to  the  jury,  and  what  was  the  nature  ol 

that  action  ? 


C  3*  3 


Mr.  Lucas .  There  was  an  a&ion  tried  in  which  I  gave  aq 
ppinion  to  the  jury,  and  fo  far  as  I  can  recollect  it  was  an  ao? 
tion  of  damage  brought  by  Jonathan  Co.ulter  againft  Jaraes( 
Moore  for  defamation. 

Mr.  Dallas.  Did  Mr.  Addifon  prefide  at  that  time  ? 

Mr.  Lucas.  Yes  Sir. 

Mr.  Dallas.  Did  he  deliver  a  charge  to  the  jury  in  that 

pafe  ? 

Mr.  Lucas.  Yes  Sir. 

Mr.  Dallas ,  Did  he  wifh  the  jury  to  give  exemplary  da¬ 
mages  ? 

t.  O 

I  >,  r  '■  ''  V  f  •  .  )  >  .  ,F  i,  ■ 

Mr.  Lucas.  I  do  not  recoiled  that  he  ufed  the  term  exem¬ 
plary,  but  I  underftood  the  drift  of  his  charge  to  be  in  favor  of 
Exemplary  damages. 

Mr.  Dallas.  Did  you  differ  with  him  in  opinion  on  that 
point  ? 

Mr.  Lucas .  I  cannot  fay  that  I  expreffed  an  opinion  differ¬ 
ent  from  Mr.  A.  but  I  thought  from  what  had  been  faid  by 
him  the  jury  might  be  inclined  to  find  heavy  damages  ;  and  as 
he  was  not  explicit  on  that  point,  neither  was  I  explicit.  I 
thought  a'lfo  that  Mr.  Addifon  had  with  uncommon  induftry 
attended  to  the  plaintiff’s  fide  of  the  queffiou,  and  had  emitted 
to  fcate  fome  things  which  were  given  in  evidence,  that  wrent  in 
mitigation  of  damages.  On  this  I  deemed  it  proper  to  make 
fome  obfervations  that  might  have  a  tendency  to  counteract  the 
idea  of  exemplary  damages. 

Mr.  Dallas.  By  this  I  underffoc.d  Mr.  Addifon  wras  in  favor 
of  high  damages,  and  you  Sir  in  favor  of  low  damages. 

Mr.  Lucas.  I  fiid  that  he  had  omitted  in  his  charge  to  the 
jury  to  ftate  the  circumftances  which  went  in  extenuation,  ard 
that  therefore  I  wyis  obliged  to  mak?  feme  obfervations  in  miti¬ 
gation. 

Mr.  Dallas.  What  paffed  after  you  had  delivered  your  re-, 
marks  to  the  jury  ? 

Mr.  Lucas.  After  I  had  fpoken  Mr.  Addifon  addreffed  the 
jury  again,  and  faid  all  this  judge  has  faid  may  be  true,  but  it 
has  nothing  to  do  with  the  queftion  now  before  you,  and  you 
ought  not  to  pay  any  attention  to  it.  You  ohferve  that  this 
•judge  and  I  differ  in  opinion,  and  it  is  probable  that  we  fliad  vf' 
ten  differ. 


[  33  3 

Mr.  Dallas.  Was  it  delivered  in  a  paflionate  manner,  or  in 
ridicule  or  contempt  ? 

Mr,  Lucas.  I  did  not  confider  it  as  delivered  in  a  paflionate 
manner,  nor  in  a  ludicrous  way  ;  but  I  confidered  it  rather  bor-? 
Bering  on  contempt,  real  or  affected. 

Mr.  Dallas.  It  affedted  your  mind  as  a  contemptuous  or  in* 
fulting  obfervat.ion  ? 

Mr.  Lucas.  The  words  were  fpoken  in  a  way  that  fhewed 
he  wiihed  it  to  be  believed  that  he  held  me  in  contempt ;  but  i 
cannot  fay  whether  this  contempt  was  real  or  affedted, 

Mr.  Dallas.  Was  there  a  full  court  at  the  time  ? 

Mr.  Lucas.  I  do  not  recolledt,  but  I  am  fure  there  was  ancn 
ther  judge  befide  myfelf. 

Mr.  Dallas.  Was  there  a  great  number  of  perfons  attending 
the  court  ? 

Mr.  Lucas.  Yes  Sir. 

Mr.  Dallas.  What  was  the  verdict  of  the  jury  ? 

Mr.  Lucas.  In  the  firth  inftance  it  was  12  cents  or  6  cents 
damages  ;  1  can’t  fay  which,  but  nfter  they  had  given  in  this, 
verdidt  Judge  Addifqn  obferved  that  if  they  intended  Coul¬ 
ter  fhould  have  coils,  they  muff  And  above  40  ihillings,  as  a  lefg 
fum  would  not  carry  coils.  I  think  400141  fniHin  ;s. 

Mr.  Dallas.  Did  you  think  the  jury  in  finding  this  verdidjs 
conformed  to  the  charge  you  had  given  ? 

Mr.  Lucas.  Yes  Sir — I  thought  fo. 

Cross  Examination. 

Mr.  Addfon.  You  faid  that  my  opinion  was  in  favor  of  Tgh 
damages,  what  part  of  my  charge  induced  you  tc  believe  that 
to  be  the  cafe  ? 

Mr.  Lucas.  I  cannot  repeat  your  words  with  accuracy,  but  f 
believed  your  direclion  was  calculated  to  make  tl  pav  ice 
high  damages.  I  believe  you  did  not  think  prop  ■  t  ;  n  a 
minute  manner  the  teflimony  of  the  witneiTes,  1  ut  h  i  Ten  a 
general.  I  believe  one  expreflion  was  quoted  fro.  S  -hr  1  c  : 

■  V  a  good  name  \vas  a  precious  jevyel  and  from  it  et 

you  meant  to  magnify  the  injury  done  to  Coulter. 

Mr.  A d dl fun.  It  was  from  Shakefpeare  I  quoted,  and  not 

from,  Solomon, 


1 


C  34  3 

Mr.  Lucas.  It  is  no  matter  what  author  it  came  from,  whe* 
ther  Solomon  or  Shakefpeare.  I  think  I  have  read  it  however 
in  Solomon’s  Proverbs.  I  am  not  acquainted  with  Shakefpeare, 
but  I  mentioned  the  fad.  You  did  ufe  the  expreffion,  “  a  good 
name  was  a  jewel.” 

Mr.  Addifon.  Do  you  mean  to  fay  that  in  your  opinion  a, 
good  name  is  not  a  jewel  ? 

Mr.  Lucas ,  I  Hand  here  Sir  to  Hate  fads,  and  not  to  give 
opinions. 

Mr.  Addifon.  You  have  been  all  along  Hating  opinions  among 
your  fads  ;  the  queftion  therefore  does  not  appear  to  me  im¬ 
proper. 

Mr.  Dallas.  I  take  this  opportunity  to  allure  the  learned 
gentleman,  that  the  counfel  for  the  managers  are  difpofed  to 
continue  as  they  have  begun,  to  treat  him  with  all  the  delicacy 
the  nature  of  the  cafe  will  admit  of ;  but  we  hope  a  fimilar  de¬ 
corum  may  be  obferved  toward  our  witneffes,  and  that  he  will 
not  again  endeavor  to  make  improper  impreffions  by  fuch  infidu- 
ous  queftions  as,  “  Do  you  think  a  good  name  is  not  a  jewel  ?” 

Mr.  Addifon .  I  fhall  not  fail  to  follow  the  example  of  deco¬ 
rum  which  may  be  fet  me,  and  I  beg  leave  to  allure  the  Senate, 
that  if  I  do  fail  in  any  cafe  it  will  be  for  want  of  knowing  what 
is  proper,  and  not  from  a  want  of  refped  to.  the  gentlemen, 
their  witneffes,  or  the  honorable  members  of  this  body.  It  did 
appear  to  me  from  the  manner  in  which  Mr.  Lucas  repeated  my 
words,  “  a  good  name  is  a  jewel,”  that  he  queftioned  the  cor- 
rednefs  of  the  idea.  A  regard  to  my  own  charader,  as  well 
the  refped  I  have  already  mentioned,  will  enfure  on  my  part  a 
ready  acquiescence  in  the  fenfe  of  the  gentlemen.  I  wave  the 
queftion* 

Mr.  Whitehill  You  mull  obferve,  Mr.  Speaker,  the  arrange¬ 
ment  made  in  this  room  has  placed  the  Senate  fo  far  apart  from 
the  witneffes  and  the  defendant,  that  it  is  impoflible  to  check 
improper  queftions  the  moment  they  are  put.  Then  as  you 
Sir  and  we  are  incapable  from  the  diflance  to  furnifh  this  check, 
we  therefore  wifh  the  gentlemen  of  the  bar  to  check  for  us,  and 
I  believe  on  this  occafion  they  have  done  it  very  properly.  We 
want  a  ftatement  of  fads,  and  not  opinions. 

Mr.  Addifon .  Yon  fay  it  was  an  adion  of  Hander,  Was  the 
flander  proved  £ 

Mr.  Lucas.  I  wifh  to  exprefs  myfelf  fully,  and  had  I  nor 
been  interrupted  by  you,  I  fhould  have  declared  the  fads  in  the  .1 
manner  I  underflood  themA 


[  35  3 

I  Was  faying  that  Mr.  Addifon  had  obferved  that  a  good 
name  was  a  precious  jewel,  and  I  think  the  fame.  Yet  as  1 
thought  this  exprefiion  went  to  magnify  the  damage  done  to 
the  character  of  J.  Coulter,  I  judged  it  neceffary  to  remark* 
that  if  a  good  name  was  a  jewel,  he  had  not  valued  it  as  fuch 
a  jewel  ought  to  be  valued  ;  and  if  he  did  not  put  a  proper  va¬ 
lue  on  it,  the  damage  done  him  by  the  flander  ought  not  to  bd 
confidered  fo  great  as  if  he  had  {hewn  more  attention  to  pre- 
fcrve  a  fair  reputation. 

Mr.  Addifon.  Was  there  any  evidence  on  that  trial  of  Coul¬ 
ter’s  having  kept  improper  perfons  about  his  houfe,  and  that 
he  was  apprized  of  it. 

Mr.  Lucas.  I  believe  there  was  fuch  teftimony,  as  far  as  I 
recoiled. 

Mr.  Addifon.  Do  you  recollect  what  that  teftimony  was  ? 

Mr.  Lucas.  It  was  that  a  man  had  boafted  he  could  keep 
company  with  a  girl  under  Coulter’s  guardianlhip,  and  it  was 
underftood  to  be  a  difcredit  to  his  houle  that  he  kept  fuch  bad 
order  in  his  family. 

Mr.  Addifon.  I  thought  mine  a  dired  queftion,  but  your  an- 
fwer  avoids  it. 

Mr.  Lucas.  Do  you  mean  that  the  report  had  been  told  to 
Coulter  ?  A  queftion  was  alked,  but  I  do  not  recoiled. 

Mr.  Addifon .  Was  not  Laurence  alked  by  Judge  Wallace, 
did  you  ever  tell  Coulter  this  ftory  ?  and  he  anfwered  no. 

Mr.  Lucas.  I  do  not  recoiled. 

Mr.  Addifon.  Did  I  not  tell  the  jury  that  the  evidence  was 
fufficient  for  them  to  ftnd  a  verdid  of  guilty  upon  ;  but^  as  to 
the  damages  they  were  the  foie  judges,  and  that  would  depend 
upon  the  teftimony  they  had  heard.  Did  I  not  further  fay9 
that  in  cafes  of  flander,  when  the  defendant  was  found  gunty, 
exemplary,  compenfatory,  or  mere  nominal  damage  might  be 
given,  as  the  cafe  required,  and  that  which  of  thefe  were  to  be 
given  it  was  for  them  and  them  only  to  decide  ? 

Mr.  Lucas .  I  do  not  recoiled  it. 

Mr.  Addifon.  When  you  addrefled  the  jury  do  you  recoiled 
what  your  charge  was  ? 

Mr.  Lucas.  Your  charge  had  led  me  to  the  idea  that  you  in¬ 
clined  to  high  damages,  and  the  conftderation  1  offered  went  on 
the  contrary  opinion. 


t  36  1 

Mr.  Addfon.  Did  you  not  fay  that  if  this,  man  had  carnal 
knowledge  of  the  girl,  and  Cotdter  was  informed  of  it,  he 
ought  to  have  brought  an  adtion  of  (lander: 

Mr.  Lucas .  I  remember  faying  that  if  a  good  name  was  a 
valuable  jewel  that  Coulter  ought  to  have  been  more  careful  of 
it,  and  made  a  better  uie  of  the  information  which  had  been 
given  to  him  of  the  improper  conduit  which  took  place  in  his 
own  houfe* 

Mr.  Addifon .  Did  I  not  fay  to  the  jury  that  although  pa¬ 
rents  and  mailers  were  bound  to  provide  for  the  mppoit  of 
their  children  and  fervants,  yet  they  aie  not  ounged  to  bung 
a&ions  of  Hander  on  their  behalf  againft  thofe  who  defame  them. 

Mr.  Lucas .  I  do  not  recoiled!. 


Mr.  Addifon.  Did  I  not  fay  that  Mr.  Coulter’s  not  having 
brought  an  adtion  again!!  the  perfon  who  averted  that  he  had 
iin  improper  intimacy  m  his  family,  was  no  moie  a  leaiou  wny 
he  fhould  not  recover  damages  in  the  prefent  care,  than  that  a 
man  who  had  brought  an  adlion  to  recover  damages  for  taking 
away  his  horfe,  fhould  not  recover  damages  became  he  had  not 
fued  another  for  taking  away  his  cow.  Nor  why  a  man  ihould 
not  recover  in  an  adtion  for  Hander,  becaufe  he  did  not  profecute 
an  adtion  of  alfault  and  battery. 


Mr.  L  ucas .  I  do  not  recollects 

Mr.  FINDLEY. 

I  do  not  wifh  to  interfere  with  the  gentleman  or  prevent  the 
examination  of  witnelfes  in  his  own  way  ;  yet  I  cannot  but 
think  thefe  queltione  are  irreyalent  to  the  point  under  our  con- 
iideration.  The  quellion  with  us  is,  had  Mr.  Lucas  the  right 
of  addrefiing  a  jury,  and  did  the  defendant  pervert  or  prevent 
the  exercife  of  that  right  ?  I  hope  the  examination  may  in  fa0, 
ture  be  kept  more  kridtly  to  that  point. 

Mr.  MACLAY,  Speaker. 

If  the  Senate  mean  to  take  any  order  on  that  head,  it  fhoulcf 
be  done  by  motion. 

Mr.  Addifon.  There  are  two  charges  made  again!!  me  ;  the 
firft  that  I  did  not  allow  the  fame  force  to  Mr.  Lucas’s  obierva* 
tions  as  he  was  inclined  to  believe  they  merited  ;  I  feel  it  there¬ 
fore  incumbent  upon  me  to  endeavor  to  fatisfy  the  Senate  that 
1  had  faid  in  my  opinion  nothing  but  what  was  ftridtly  proper, 
and  that  Mr.  Lucas’s  opinions  might  be  true  ;  but  at  that  time 


L  37  ] 

f  .  i  t  t 

they  bad  nothing  to  do  with  the  queftion.  But  I  will  not  ilrain 
the  patience  of  the  Senate.  1  will  alk  but  one  queltion  more. 

You  laid  there  was  fomething  contemptuous.  Was  it  in 
the  words  or  in  the  manner  ? 


Mr.  Lucas.  It  was  from  your  -words  and  a  compound  of  cir- 
cumilances  that  operated  on  my  mind  to  think  you  either  felt 
or  ufFedted  contempt. 

Mr.  Addifon.  Was  the  court  full  ?  were  all  the  judges  there  ? 

Mr.  Luca's.  I  recoiled!  that  Mr.  Wallace  was  there,  for  I 
made  fomc  intimation  of  my  intention  to  fpeak,  in  order  that 
if  he  cnofe  Ire  might  fpeak  before  me,  and  I  remember  he  ari- 
Iwereo  by  iome  filent  lign,  that  he  did  not  mean  to  fay  any 
thing. 

Mr.  Add) fan.  Where  did  Mr.  Wallace  fit  ?  Did  he  not  fit  bc 
tween  you  a  ad  me  ? 

Mr.  Lucas.  I  do  not  recoiled!, 

(  >  * 

Mr.  Addifon.  Did  he  not  lit  on  your  right  hand  ?  • 

Mr.  Lucas.  I  do  not  recoiled!. 

Mr.  Addifon.  Vv  ere  not  all  the  judges  on  the  bench  ? 

Mr.  Lucas.  I  do  not  recoiled!. 


Mr.  Addifon.  The  fad  is  they  were  all  there.  I  have  done. 

Mr.  Dallas  fuggefted  the  propriety  of  proceeding  in  a  more 

jf^Ui3r  way.  The  defendant  in  this  mode  was  makino*  evi- 
utiwce  id  himfelf,  which  ought  not  to  be  admitted. 

Mr.  MAC  LAY,  Speaker, 

.  Remarked  on  the  impoffibility  of  taking  down  the  teftimony 
if  ^gentlemen  proceeded  as  they  had  done,  by  afking  queftions, 
without  waiting  for  the  anfwers  to  be  heard,  and  afking  others 
anew.  He  hoped  the  witneffes  would  in  future  give  their  teftk 
meiny  in  chief,  in  their  own  manner. 

SAME  DAY,  3  o’clock,  P.  M» 

The  trial  refumed. 

William  Ayres,  fvvorn. 

Mr.  Dallas.  We  wifh  him  to  be  afked  whether  he  was  pr§& 
Lnt  at  a  court  of  commdn  pleas  in  Allegheny  county,  held  on 
•c  2  Bib  of  March  ifioi,  and  what  palfed  at  that  time, 

F 


9 


C  3*  3 

Mr.  Ayres.  I  was  prefcnt  on  the  28th  of  March  1801  % 
an  adtion  of  hander  between  Jonathan  Coulter,  a  juftice  and 
tavern-keeper  (at  that  time)  and  James  Moore,  defendant,  was 
trying.  The  defendant  undertook  to  juftify  and  fhew,  that 
what  he  had  faid  was  true.  It  was  a  charge  for  keeping  a 
houfe  of  ill  fame.  He  gave  in  evidence  fundiy  irregularities, 
which  went  a  confiderabie  length  to  juftify  the  words  fpoken 
of  the  plaintiff.  After  the  teftimeny  and  arguments  were 
clofed,  Judge  Addifon  charged  the  jury  ;  the  words  I  cannot 
recoiled!  ;  but  it  was  in  favor  of  the  plaintiff,  and  it  was  the 
opinion  of  the  judge,  that  the  defendant  had  not  made  out  his 
j unification  ;  and  confidering  the  plaintiff  as  a  juftice  and  ta¬ 
vern-keeper,  the  jury  would  be  juftified  in  compenfating  him 
liberally — more  than  nominal  damages  however.  After  he  had 
concluded,  Judge  Lucas  fpoke  to  Judge  Wallace,  who  (hook 
his  head  ;  Judge  Lucas  then  faid  he  had  fomething  he  wi died 
to  obferve  to  the  jury,  and  made  fome  obfervations  which  had 
a  tendency  to  induce  the  jury  to  find  lefs  damages,  that  he 
conceived  the  defendant  had  gone  fuch  a  length  in  juftifica- 
tion,  that  nothing  more  than  nominal  damages  ought  to  be 
found.  Both  judges  were  careful  to  obferve  to  the  jury  that 
the  meafure  of  the  damages  was  entirely  within  their  province, 
and  left  it  to  the  jury  folely. 

After  Judge  Lucas  had  made  his  obfervations,  Judge  Addi-! 
fon  laid,  u  You  fee,  gentlemen,  there'  is  a  difference  of  opi¬ 
nion,  and  it  is  highly  probable  that  gentleman  and  I  will  fre¬ 
quently  differ  in  opinion.”  Judge  Lucas  faid,  “  Gentlemen,- 
you  have  heard  the  learned  judges  opinion,  however  this  is 
my  opinion.”  Judge  Addifon  immediately  after  laid,  “  what 
that  judge  has  faid  may  be  ail  true,  but  has  nothing  to  do  with 
the  queftion.” 

Mr.  Dallas  Did  Judge  Addifon  deliver  this  in  a  paffionate 
or  contemptuous  manner  ? 

Mr.  Ayres.  There  is  no  imprefilon  on  my  mind  at  prefent. 
that  Judge  Addifon  fpoke,  on  that  occafion,  with  more  warmth 
than  on  other  occafions.  There  is  no  imprefiion  on  my  mind, 
that  he  appeared  to  be  in  a  pafTion,  but  he  fpoke  loud  and 
with  fome  degree  of  warmth. 

Mr.  Addifon.  I  wilh  the  gentleman  to  be  alked  if  it  is  not 
my  ufual  way  of  fpeaking  loud,  fo  as  to  be  heard  through  the 
houfe,  which  is  a  large  one. 

Mr.  Ayres.  Judge  Addifon  does  generally  fpeak  loud,  fo  as 
to  be  heard  diftindlly  through  our  court-houfe,  which  is  a  large 
one. 


i 


[  39  1 


Mr.  Addifon.  Another  queftion  and  I  have  done.  You 
have  often  heard  the  judges  of  the  fuprane  court;  do  they 
on  the  bench  fpeak  as  loud  as  I  ufually  do  ?  I  afk  this  queftion, 
becaufe  it  may  appear  to  fome  that  1  am  m  a  paiTion  when  my 
intention  is  only  to  be  heard. 

Mr.  Ayres.  My  recolledion  of  the  manner  in  which  the 
judges  of  the  fupreme  court  ufually  fpeak  is,  that  they  are  not 
fo  loud' as  Mr.  Addifon.  It  does  not  appear  to  me  that  either 
of  thofe  judges  have  naturally  fo  ftrong  a  voice  as  Mr.  Addi- 

fon. 

Mr.  Addifon.  I  have  nothing  further  to  trouble  this  gentle¬ 
man  with,  Sir. 

Tarleton  Bates,  fworn. 


Mr.  Dallas.  I  wifh  the  gentleman  to  be  afked  whether  he 
attended  the  court  of  common  pleas  on  the  28th  of  March, 
1801,  and  to  relate  the  tranfactions  that  took  place  at  that 

time. 

Mr.  Bates.  I  was  prefent  at  the  court  of  common  pleas  on 
the  28th  of  March  1801.  I  do  not  diftinaiy  .recoiled  thofe 
charges,  but  a  general  impreflion  o-f  them  remain  on  my  mind. 
Tudo  e  Addifon’s  charge  was  confiderably.  animated  ;  It  had 
touched  thofe  points  which  moft  judges  ufually  touch  on  inch 
occahons  ;  but  in  this  particular  cafe  ne  concei\  e  t  ie  jury 
might  give  high  damages.  Judge  Lucas’s  obfervation.s  imprel- 
fed  my  mind  that  it  was  his  defire  that  the  jury  might  give 
low  damages.  After  Judge  Lucas  had  conclude: ,  Jucge  -a 
difon  turned  to  Mr.  Lucas  and  laid  to  the  jury,  “  Gentlemen, 
you  fee  that  that  judge  and  I  differ,  and  it  is.  provable  we 
mall  frequently  differ,  yet  what  that  gentleman  has  faid  may 
all  be  true,  but  it  is  irrevalent  to  the  caufe  now.  berore  you, 
and  they  ought  to  pay  no  attention  to  it.  The  jury  returned 
into  court,  and  gave  fix  cents  damages..  Judge  Addifon  afked 
them  if  it  was  the  intention  of  the  jury  that  the  defendant 
fhould  pay  the  colls,  or  whether  they  were,  aware  of  their  ver- 
dia,  which  would  not  entitle  the  plaintiff  to  recover  them. 
They  anfwered  they  were  not ;  and  the  verdid  was  altered  to 
forty-one  (hillings,  and  the  judgment  was  entered  accordingly. 

Mr.  Dallas.  You  have  mentioned  that  Judge  Addifon  turn¬ 
ed  round  and  faid,  “  that  judge  and  I  differ,”  &c.  I  wifh 
you  would  ft  ate  what  was  the  manner,  whether  in  palhon  or  con- 

temptuoufiy. 


C  4°  ] 


Mr.  Bates.  My  ft  rang  rccolle&ion  is  that  he  turned  round 
this  way  *  and  laid  a  ftrong  emphafis  on  the  word  that  judge,' 
and  to  my  mind  he  did  feem  warm. 

r.  y!  hhfon .  I  wifti  to  afk  whether  the  jury  were  not  upon, 
my  left  hand  as  well  as  Mr.  Lucas,  and  whether  I  could  have 
turned  to  fpeak  to  them  without  turning  to  Mr.  Lucas  ? 

Mr.  Bates.  The  jury  were  on  your  left  hand,  as  well  as  judge 
.Lucas,  but  you  turned  round  to  "him. 

Bddifon.  Does  not  the  jury-box  come  up  even  with  the 
front  /of  the  bench  ? 

I\ir.  Bates.  It  does  not  come  up  quite  to  the  front  of  the 

bench  ;  there  is  an  interftice  between  them  fufficient  for  a  man 

to  oafs.  ■  •' 

r  Brc  d‘ld'tn  (rofe  from  hIs  feat>  and  taking  the  right  hand 
i1"  or  ;  :  ■"j:uics>  heafkedhim)  fuppofing  this  to  be  the  bench, 

is  not  the  oar  there  (pointing  in  front  towards  the  Speaker’s  ta- 
r',  and  tlle  J»r)’-hoxes  there  (pointing  to  the  left  in  an  angle 
or  about  20  degrees)  and  was  not  judge  Lucas  fitting  he.e, 
(pointing  to  Mr.  Bates,  who  was  along  fide  of  him.) 

Mr.  Bates.  Am  I  to  confider  you  as  the  preudent  of  the 
©ourt,  and  myfeif  as  judge  Lucas  ? 

ltdr.  Addifon.  \  es,  I  alk  the  queftions  in  this  way,  to  fhew 

1  'at  not  iurn  10  addrefs  the  jury,  without  turning  to¬ 
ward  Mr.  Lucas.  .  ° 

Mr.  Bates.  The  pofitions  are  nearly  as  judge  Addifon  ha. 
oeicribed  them. 

a  fyr  Dal'as'  Dld  y°u  conceive  that  in  turning  round,  Mr. 

,-^on  turneq  more  to  point  out  Mr.  Lucas,  than  he  did  to 

addrels  the  jury  ?  ‘  ; 

BaieS‘  II  ls  mY  opinion  that  he  turned  more  round  f 

ini*  i_.ucas0  k  .  . 

*  % 

SECOND  CHARGE. 

j .  B.  C.  Bucas  was  called  again. 

¥'[  1  the  gentleman  to  ftate,  whether  he  was 

.j  ,c‘  c“l'Tt  °x  ftaaiLer  fcfiions,  held  in  Allegheny  county 
t-rr^IlG  “2cl“  OI  June,  and  to  relate  what  paffed  at  that 

,P2"es  threw  his  left  hand  back,  and  from  the  attitude 
it  «ou.a  Lem  that  Mr.  Addifon  pointed  to  Mr.  Lucas. 


C  41  ] 


Mr.  Lucas.  On  the  2  2d  of  June,  1801,  I  was  fitting  as  an 
alfociate  judge  at  a' court  c:  quarter  fefiions  in  Allegheny  coun¬ 
ty.  In  the  firil  infta  ce,  in  the  morning  I  favv  two  judges  on 
the  bench,  Mr.  Addifon  and  Mr.  M ’Howell,  and  I  became 
the  third  one.  I  noticed  a  little  before  the  time  the  charge 
was  delivered  to  the  grand  juiy  by  Mr.  Addifon,  that  Mr. 
Addifon  fpoke  a  few  words  low,  in  a  whifper,  to  Mr.  MT)ow- 
ell.  I  noticed  alfo,  that  a  little  after  thofe  few  words  were 
whifpered,  Mr.  M’  Dowell  retired  from  the  bench,  I  noticed 
alfo,  that  after  Mr.  M’Dowell  had  retired,  that  Mr.  Addi- 
:on  and  I  remained  alone  on  the  bench.  We  were  in  that 
lituation  when  Mr.  Addifon  begpn  to  addrefs  toe  grand  jury. 
After  he  had  ended  his  addrefs,  I  attempted  alfo  to  addrefs 
the  lame  jury.  My  addrefs  began  in  thefe  words  :  “  Gen¬ 

tlemen  of  the  grand  jury o’  Immediately  after  I  had  pronounced 
1  word  or  two  more,  I  was  interrupted  by  Mr.  Addifon.  The 
manner  in  which  he  interrupted  me  was  not  abrupt  and  rebut- 
dng,  but  with  a  mild  countenanpe,  and  he  feemed  to  entreat, 
me  not  to  addrefs  the  jury  ;  milder  than  I  had  been  interrupt¬ 
ed  heretofore.  Mr.  Addifon  infilled  I  fhould  have  a  ccnfci  encq 
with  him  upon  the  merits  of  what  I  had  to  fay  to  the  jury. 
And  I  underilood  either  explicitly,  or  by  implication,  he  would 
:ommunicate  it  if  he  thought  it  wa/  proper,  or  would  anfwer  a 
Tood  purpofe.  I  anfwered,  that  as  he  had  addrelled  the  jury, 
vvithout  previoully  commnicating  his  charge  to  me,  i  would 
erve  aim  the  fame  way,  -and  would  take  all  the  rifque  o  what 
1  had  to  fay  to  the  jury  ;  and  to  the  bed  of  my  recollection  at- 
empted  to  accreis  the  jury,  Mr.  Addifon  interrupted  me 
igain,  and  endeavored  to  perfuade  me,  with  all  the  force  he 
vas  polleiled  of,  both  by  gelture  and  mild  expreffion,  to  prevail 
in  me  to  defiil  from  my  attempt.  I  then  infilled,  fpeaking 
vit’i  him,  that  I  would  addrefs  the  jury,  it  was  then  a  proper 
ime  for  me  to  do  it.  Thereupon  he  requefted  me  again  to  let 
*  lim  know  what  I  had  to  fay  to  the  jury.  I  had  in  my  hand  a 
>aper,  containing  what  I  had  to  fay  to  the  jury,  and  1  tender- 
|dit  to  Mr,  Addifon.  Direaiy  Mr.  Addifon  changed  his 
ground,  ana  mitred  of  advancing  his  hand  to  receive  the  paper 
rom  mine,  he  told  me  we  ought  to  adjourn,  and  that  in  the  af- 
ernoon,  I  would  be  in  the  fame  fituation,  and  might  at  that 
:me  urge  my  right  as  well  as  then.  I  anfwered  him,"  I  thought 
!’  ^Prefer,t  time  was  the  proper  time  for  me  to  deliver  my  charge, 
ind  I  could  not  agree  to  an  adjournment  till  afternoon.  He 
,en  l‘SbclL(-(j  the  propriety  ol  having  a  con  liable  chofen,  to  adl 
n  that  capacity  to  the  grand  jury,  i  told  him  I  thought  my 
tudrels  to  the  jury  Ihpuld  precede  that  operation.  He  infilled 


[  42  ] 


again  that  the  conftable  fhould  be  chofen,  ftill  in  a  perfuafive 
way  ;  I  yielded,  and  a  conftable  was  immediately  chofen.  1 
inlifted  again  upon  addrefling  the  jury,  ana  made  an  attempt. 
Mr.  Addifon  then  did  not  feem  any  more  to  wifti  to  entreat 
and  perfuade  me  to  any  thing,  but  for  his  part  coniidered  the 
court  adjourned.  I  refufed  to  confent  to  it,  and  Mi.  Addiion 
left  his  feat,  came  down  the  fleps  and  faid  the  court  may  conii, 
der  itfelf  as  adjourned  till  three  o’clock.  For  my  part,  I  re¬ 
mained  cn  the  bench  half  a  minute  only  to  vouch  tnat  I  w  as  not 
removing,  Decants  Ivfr,  Addifon  conlidered  the  couit  adjoin  n- 
cd,  but  becaufe  it  was  not  in  my  power  to  hold  the  court  alone. 

In  the  afternoon,  at  three  o’clock,  I  repaired  to  tne  court- 
houfe,  and  took  my  feat  on  the  bench.  Mr.  Addifon  went  on 
the  bench  alfo.  I  intimated  aire&ly  my  defire  to  have  another 
judge  on  the  bench  befide  ourfelves  ;  he  anfwered  me,  thai.  he 
had  jnfl  now  fent  for  judge  M‘Dowel.  Judge  MtDcv^el  came 
a  few  minutes  after,  and  took  his  feat  alio.  I  sdaiened  ivir. 
M‘Dowel  and  gave  him  a  fhort  account  of  the  moil  important 
part  of  what  had  taken  place  at  the  court  in  the  morning,  be- 
tween  Mr.  Addifon  and  royfelf,  and  further  told  him  my  ^de¬ 
termination  was  to  addreis  the  grand  jury  inftantly.  ihe 
grand  jury  was  then  in  the  box.  Mr.  McDowell  aniweied  me 
it  was  a  new  queftion,  which  he  wifned  to  have  poftponed  until 
there  would  be  a  more  full  court ;  he  added  that  he  was  net  rea- 
dy  to  give  an  opinion  upon  that  queilion.  I  replied  to  him  that 
the  deciiion  of  the  queilion,  in  my  opinion,  could  not  admit  of 
poflponement,  that  nothing  but  that  had  prevented  the  grand 
jury  from  attending  to  their  bufinefs  ;  that  they  muft  attend  to 
their  bufinefs.  And  that  I  thought  what  I  was  going  to  ad- 
drefs  to  them  might  be  of  material  ufefulnefs.  Mr.  MdDowefj 
feemed.  to  be  at  a  lofs,  and  faid,  flnee  you  are  with  us,. why 
don’t  you  go  along  with  us  ?  Why  do  you  create  dilfentions  ? 
I  obferved  1  did  not  mean  to  create  diflentions  ;  1  claimed  the 
foie  right  which  I  hacb  and  that  right  did  not  interfere  with 
the  rights  of  others.  1  added,  that  1  did' not  intend  to  pre¬ 
clude  any  of  the  judges  from  addrefling  juries  as  oicen  or  as 
feldom  as  they  were  pleafed  to  do  it  ;  that  for  my  part,  I  in¬ 
tended  to  exercife  that  right  according  to  my*  dilcretion,.  with  j 
out  controuh  As  he  was  ftill  declining  to  give  an  opinion  or  i 
the  queilion,  by  various  evafive  anfwers,  I  put  anew  the  fann 
queilion  to  him,  in  thefe  words,  as  far  as  I  can  recollect.  “  Dd 
you  deny  me  the  right  of  addrefling  the  grand  jury,  wbicll 
right  I  now  claim  ?”  He  anfwered,  “  yes,  I  do.”  During  all 
that  time  Mr.  Addifon  was  filent,  or  if  not  filent,  did  no*  nied  j 


[  43  ] 


die  with  our  converfation.  Inftantly  it  came  to  my  mind,  that 
the  right  I  claimed,  was  a  right  emanating  from  the  conftitu- 
tion,  and  that  it  was  not  within  the  pale  of  the  court  to  difpute 
that  right,  or  to  hinder  me  from  exercifmg  it.  1  then  conclud¬ 
ed  in  my  mind,  that  the  opinion  of  the  court  could  not  be  bind¬ 
ing  on  me,  and  in  purfuance  of  that  ccnfideration,  I  attempted 
again  to  addrefs  the  jury.  Mr.  Addifon  inftantly  attempted  to 
prevent  me  by  ordering  iilence.  It  was  no  more  the  tone  he  had 
in  the  morning*  It  was  a  ftern  and  threatening  tone.  And  as 
I  was  going  on,  pronouncing  two  or  three  words  more,  I  was 
Interrupted  anew  by  Mr.  Addifon,  who  told  me,  “  Sir,  I  did 
let  you  explaiti  yourfelf  with  Mr.  M'Dowel  without  interfering,' 
I’ll  now  put  in  force  the  opinion  of  the  court.”  I  believe,  to 
the  bell  of  my  recollection,  I  infilled  on  exercifing  my  confti- 
tutional  right*  without  acknowledging  his  authority,  or  words 
to  that  purpole.  He  then  uttered  thefe  words  :  “  Silence,  Sir, 
we  will  not  fuller  you  longer,  and  if  you  do  not  debit,  we  will 
Imake  you  do  it.”  I  then  debited,  not  exprefsly,  but  by  faying 
nothing  ;  that  is,  I  made  no  exprefs  or  formal  renunciation  of 
my  right.  The  laft  words  Mr.  Addifon  ufed,  appeared  to  me 
sin  a  Itili  more  imperious  or  threatening  way,  and  I  went  no 
further  from  two  confiderations.  The  nrft  was,  becaufe  I 
thought  I  had  made  fufbcient  exertions  to  affert  my  right,  and 
I  to  offer  my  fervices  to  the  public.  The  fecond  was*  becaufe  I 
:  took  into  view,  that  fomething  might  happen,  that  would  be 
in  evil  examole  to  the  bulk  of  the  people,  with  refped  to  the 
:ourt,  and  too  great  a  mortification  to  my  feelings;  I  do  not 
,  recollect  any  thiftg  more. 

Mr.  Dallas.  Did  you  debft,  and  leave  the  bench,  in  confe¬ 
rence  of  threats  from  Mr.  Addifon  ? 

Mr.  L  ucas.  If  Mr.  Addifon  had  not  faid,  “  we  will  make 
mu  do  it,”  1  do  believe  I  would  have  perhfted  longer  to  affert 
ny  right.  But  I  did  not  leave  the  bench  from  fear  of  Mr.  Ad- 

lifon. 

Mr.  Addifon.  Do  you  recoiled  at  what  time  the  conftable 
vas  chofen  ? 

Mr.  Lucas.  I  cannot  recoiled  at  what  ftage  of  the  controver- 
y,  in  the  morning,  the  grand  jury  was  di reded  to  clioofe  a 

onllable. 

( Here  Mr.  Addifon  read  fame  of  the  depofitions  of  the  ‘wi'tnfJfesy 
7  order  to  call  the  fadt  to  his  former  recollection. ) 

But  Mr.  Lucas  did  not  recoiled  the  precife  time,  yet  added 
hat  he  made  the  attempt  to  address  the  jury  both  before  and 
iter  the  conftable  was  chofen. 


/A 


f  44  ] 

'  ,  .  : 

Mr.  Addifon.  Did  you  ever  tender  me  your  addrefs  till  after  I 
had  fpoken  to  the  jury,  “  that  you  had  fomething  that  you  had 
not  communicated  to  me  r  ? 

Mr.  Lucas .  I  do  not  recoiled,  whether  it  was  before  or  after,' 

Mr.  Addifon.  What  was  the  fubjed  of  my  charge  on  the  2  2d 
of  J  une 1801? 

Mr.  Lucas .  I  thought  it  was  a  very  proper  charge.  I  admi* 
fed  it. 

Mr.  Addifon .  Did  Inot  every  word  of  it  relate  to  the  duties 
of  a  grand  jury  ? 

Mr.  Lucas *  I  beheve  every  word  of  it  related  to  the  duties 
of  a  grand  jury  ;  but  I  did  not  think  it  contained  all  that  might 
be  faid  to  a  grand  jury. 

Mr.  Addifon.  What  was  the  fubftance  of  your  charge  ?  Did 
it  refpedt  any  errors  I  had  delivered,  or  was  it  to  fupply  any 
omifiions  ? 

Mr.  Lucas.  There  was  no  kind  of  criticifm  in  rny  charge  on 
the  one  Mr.  Addilon  had  delivered.  There  was  an  amplifica¬ 
tion  of  inftruCtions.  I  intended  it  to  fupply  omiflions. 

Mr.  Addifon.  Did  it  relate  to  any  indictment  or  any  immedi¬ 
ate  duty  to  be  difcharged  by  that  grand  jury? 

Mr.  Addifon.  Is  this  the  charge  you  intended  to  deliver? 

(Here  Mr.  Addifon  prefented  Mr.  Lucas  with  a  newfpaper,' 
containing  a  charge,  for  which  fee  the  appendix.) 

Mr.  WHITEHILL. 

We  may  fpend  a  gveat  deal  of  time  in  hearing  queftions  and 
anfwers  in  this  way  without  deriving  the  information  we  are  in 
fearch  of.  The  fubjeCf  of  our  enquiry  is  not  whether  the 
charge  of  one  judge  was  relavent,  and  that  of  the  other  irre¬ 
levant,  but  whether  one  judge  did  not  affume  over  the  other 
an  authority  not  allowed  by  the  conflitution  or  laws. 

Mr.  Lucas  had  no  objection  to  anfwer  Mr.  Addifon ’s  ques¬ 
tion,  though  the  word  “  immediate”  feemed  intended  to  tie  or 
entangle  him.  My  charge  was  not  intended  to  apply  to  any 
particular  cafe  that  I  knew  of  then  pending  before  the  jury, 
but  to  enable  them  to  perform  their  duties  generally  and  with 
propriety  and  advantage.  I  never  intended  to  bring  before  them 
extraneous  matter,  but  merely  to  advife  them  to  lofe  fight  of 
fuch  Subjects  whenever  introduced. 


C  45  3 

Mr.  "Lucas.  So  far  as  I  have  read  I  know  it  to  be  my  charge* 
but  I  cannot  anfwer  for  the  whole;  unlefs  I  was  allowed  time 
to  read  it  through. 

Mr.  WHITEHALL 

Thought  it  would  be  unneceflary  to  fpend  fo  much  time  ia 
reading  a  long  paper,  the  merits  of  which  were  unimportant  to 
the  iffue  of  the  prefent  queftion. 

Mr.  MACLAY,  Speaker, 

Alked  Mr.  Addifon  if  he  had  done  with  the  witnefs. 

Mr.  Addifon.  I  have  not  done  yet,  Sir,  I  wifhed  the  paper 
to  be  recognized  ;  I  know  myfelf  the  whole  truth  of  this  bufi- 
nefs,  and  confider  it  important,  notwithftanding  the  enquiry 
will  confume  fome  time,  that  the  Senate  fhould  be  fully  inform¬ 
ed  ;  and  this  paper  1  think  will  furnifh  a  clue,  which  may 
evince  that  it  originated  in  the  malice  of  a  certain  individual, 
who  is  at  the  bottom  of  it. 

Mr.  Dallas .  I  lhould  difcharge  my  duty  ineffectually  was  I 
to  fuffer  infinuations  of  this  nature  to  pafs  unobferved.  Ca-n 
any  thing  like  a  clue  be  fuggefted  as  a  mode  of  difcovering  the 
nature  of  the  proceeding  had  againfl  the  defendant  ?  What  im** 
proper  action  is  imputable  to  the  Houfe  of  Reprefentatives  or 
the  managers  on  their  part  in  this  profecution  ?  What  are  the 
facts  as  Hated  in  the  teftimony  which  came  before  the  Houfe  ia 
the  lirft  inftance  ?  What  is  the  teftimony  delivered  on  this  floor  ? 
Has  not  the  whole  bees  fair  and  open  ?  Who  would  he  infinu- 
ate  has  been  at  the  bottom  of  it  ?  The  bottom  of  it  muft  have 
been  his  own  improper  conduct  to  a  brother  judge.  His  con¬ 
duct  here,  the  language  he  has  juft  ufed,  of  a  clue,  a  hidden 
clue,  has  betrayed  a  temper  in  that  gentleman,  which  I  did  not 
expect  he  would  have  expofed  on  the  prefent  occafton. 

Mr.  Addifon.  I  am  furprifed  at  the  ftrong  indignation  expref- 
fed  by  the  gentleman  of  counfel  for  the  managers.  I  call  upon 
the  Speaker,  the  Senate,  and  all  the  perfons  prefent.  Did  I 
fay  a  word  that  had  any  allufion  to  the  members  of  the  Houfe 
of  Reprefentatives  or  their  managers  ?  Far  be  it  from  me.  I 
am  too  well  aware  of  the  fituation  in  which  1  ftand.  I  too  well 
know  the  duty  1  owe  to  the  commonwealth  and  all  its  confti- 
tuted  authorities,  to  prefume  to  cenfure  the  gentlemen  alluded 
to.  I  truft  my  words  will  be  taken  in  my  own  fenfe  of  them, 
and  not  perverted  to  bias  your  opinions  againft  me.  What  I 

G 


[  4«  3 

utter  X  will  abide  by,  not  what  others  may  aliedge  me  to  have 

uttered. 

(Here  was  a  fmall  fufpenfion  in  Mr.  Addifon’s fpeech,  which 
induced  Mr.  Maclay  to  enquire  if  he  intended  to  put  any  fur¬ 
ther  queftions  to  Mr.  Lucas.) 

Mr.  Addifon.  I  fhould  wifh  to  be  permitted  to  go  on  with  my 
remarks.  X  know  well  the  value  of  the  time  of  the  Senate} 
and  I  will  not  prefume  to  trefpafs  on  their  attention.  I  do  not 
affedl  delay  ;  my  time  is  precious  alfo  to  myfelf,  and  I  am  ab- 
fent  from  my  family,  at  confiderable  inconvenience.  I  there¬ 
fore  may  be  fuppofed  to  wifh  for  the  fpeedy  conclufion  of  this 
trial ;  but  then  it  fhould  be  fuch  a  conclufion  as  I  think  confift- 
•ent  with  juftice  to  my  perfon,  and  juftice  to  my  reputation.  No 
want  of  candor  has  been  fhewn  on  my  part,  and  I  trufted  fiom 
the  liberality  and  indulgence  on  the  part  of  the  managers,  tnafc 
I  fhould  not  be  defeated  in  my  objed  through  either  the  mifap- 
prehenfion  or  mifreprefentation  of  the  counlel  employed  agannl 
me. 

The  queftions  I  intended  to  put  to  this  gentleman  would 
(hew  to  the  world  that  there  is  an  individual  not  either  in  the 
legiflative  or  executive  departments  of  the  government,  vho  is 
at&the  bottom  of  this  bufinefs  ;  who  has  laid  ever)-  plan  and  di¬ 
rected  every  movement  throughout  the  whole  tranfadion.  This 
is  what  I  meant  to  fhew,  and  this  knowledge  could  only  be  got 
from  Mr.  Lucas.  If  becaufe  the  counfel  don’t  know  thefe 
things,  they  are  to  objed  to  every  queftion  I  am  to  put,  more 
time  would  inevitably  be  confumed,  than  would  be  neceffary  to 
a  full  difclofure  of  the  whole  truth  ;  and  as  I  have  pledged  my¬ 
felf  not  to  confume  a  moment  of  your  time  beyond  abfolute  ne- 
ceflity,  though  I  have  the  eftablifhment  of  fuch  an  impoitant 
fad  in  view,  I  wave  all  further  enquiry  on  that  point. 

Let  him  now  be  afked  whether  this  was  the  firft  time  he 
knew  the  opinion  of  the  court  to  be  oppofed  to  his  delriering 
—  charges  to  grand  juries. 

Mr.  Lucas.  Although  he  knew  himfelf  under  the  protedion 
of  the  court,  which  would  not  permit  improper  queftions  to  be 
afked  him,  had  not  however  any  objedion  to  anfwer  every  en¬ 
quiry,  and  the  refult  would  probably  fhew  the  miftake  of  the 
infinuation.  Yet  he  hoped  that  the  Senate  would  alfo  pioted 
abfent  perfons  from  malicious  infinuations. 

Mr.  Addifon.  The  witnefs  is  undoubtedly  under  the  protec¬ 
tion  of  the  court,  and  if  it  is  fuppofed  that  my  queftion  is  im¬ 
proper,  I  will  not  fay  another  word. 


[  47  1 


Mr.  WHITEHILL. 

I  do  not  know  how  far  this  queftion  may  go,  poffibly  it  is 
intended  to  make  him  criminate  himfelf ;  if  fo,  the  gentleman 
had  better  lhew  this  by  another  witnefs  than  by  Mr.  Lucas ; 
for  it  would  be  unfair  to  expofe  a  witnefs  to  fuch  an  hazardous 
ciicumftance. 

Mr.  Lucas .  I  know  of  no  clue  to  which  he  has  allufion.  I 
am  fully  prepared  to  anfwer  him  every  queftion.  With  refped 
to  the  laft,  the  fad  is  that  previous  to  this  attempt  and  preven¬ 
tion,  I  had  made  another  attempt  and  had  been  prevented.  I 
thought  even  then  that  I  had  a  conftitutional  right  to  deliver 
my  opinion,  and  infilled  upon  it  with  diffidence  and  moderation  ; 
afterwards  I  confulted  with  fome  of  my  friends,  perhaps  Mr. 
Addifon  may  alk  me  who  they  were  ;  I  am  not  afraid  to  anfwer 
that  enquiry,,  but  it  was  not  through  a  fpirit  of  malice.  I  fay  I 
confulted  them,  and  alked  whether  1  was  to  be  confidered  as 
judge,  merely  in  name  or  in  fad.  I  found  it  art  uniform  opi¬ 
nion  that  judges  fitting  on  the  fame  bench  poffeffed  equal  pow¬ 
ers  ;  that  the  prefident  did  not  fit  as  a  judge  of  judges,  but  as 
a  judge  of  law.  I  made  application  to  the  attorney -general, 
under  an  idea  that  he  would  lay  my  grievance  before  the  fu- 
preme  court,  who  would  fettle  the  point.  That  tribunal  waved 
the  decifion-,  not  becaufe  they  doubted,  but  becaufe  they  did 
not  confider  themfelves  the  pioper  tribunal ;  they  gave  however 
an  opinion,  by  faying  that  a  judge  fitting  on  the  fame  bench 
had  equal  rights,  and  that  an  afiociate  judge  had  not  only  an 
equal  right  to  give  his  opinion,  but  that  he  was  bound  in  con- 
fcience  to  deliver  it,  if  he  differed  from  the  prefident.  After 
having  thus  informed  and  fatislied  myfelf  of  my  right  and  my 
duty,  I  attempted  again  to  exercife  the  one  and  perform  the 
other  in  the  manner  I  have  Hated. 

Mr.  Addifon.  Was  there  not  a  confutation  between  Mr.  Lu¬ 
cas,  another  judge  and  me,  on  the  fubjed  of  charges  to  juries, 
and  what  was  the  refult  of  that  conversation. 

Mr.  Lucas.  Yes,  there  was  a  confultation,  and  the  refult  was- 
that  we  parted  as  we  came  in,  difagreeing  in  opinion. 

Mr.  Addifon.  I  alk  what  was  the  opinion  of  the  other  judges, 
not  what  was  your  opinion. 

Mr.  Lucas.  Mr.  Addifon  told  me  in  court  that  he  wilhed  to 
have  fuch  a  confultation,  to  which  I  faid  here  was  the  proper 
place  to  hold  it.  He  replied  that  we  could  not  have  it  here,  but 
might  hold  it  at  any  other  place.  He  propofed  his  own  houfe. 


[  +8  ] 


which  I  refufed,  bat  on  thinking  he  might  adopt  my  ideas  if 
he  was  liberal,  or  correft  them  if  I  was  miftaken,  I  confented. 
We  went  to  a  tavern  ;  Mr.  Addifon  was  very  polite  and  atten¬ 
tive  till  we  had  entered  on  the  merits  of  my  claim,  in  fupport  of 
which  I  affigned  the  reafons  that  induced  me  to  believe  it  was 
my  right.  He  then  became  rather  warm  or  paffionate,  but  told  me 
he  did.  not  mean  to  infult  me  ;  he  even  wanted  me  to  drink  with 
him.  This  I  refufed  to  do.  He  faid  he  owed  me  no  ill  will. 
To  this  I  replied,  it  did  not  furprife  me,  as  1  had  never  done 
him  an  injury,  but  yooi  neverthelefs  deprive  me  of  my  conftitu- 
tional  right.  Mr.  M‘Dowell  was  alfo  prefent.  Shortly  after 
I  took  my  leave  of  them,  and  we  parted. 

Mr.  Addifon .  Let  him  be  afked,  if  he  was  not  told  that  in 
all  matters  between  man  and  man  in  every  cafe  that  could  come 
before  a  traverfe  jury,  every  judge  had  full  liberty  to  exprefs 
their  opinion  in  as  free  and  ample  a  manner  as  the  prefident; 
but  in  refpedl  tq  the  grand  jury,  if  any  judge  thought  that  the 
prelident  had  omitted  any  thing,  or  was  miftaken  as  to  the  quef- 
tion  before  them,  there  alfo  every  judge  had  a  right  to  give  his 
opinion  ;  but  that  the  moft  decent  way  would  be  to  communicate 
k  firft  to  the  prefident,  who  would  ftate  it  to  the  grand  jury, 
and  then  if  the  prefident  declined  to  do  it,  he  might  do  it  him- 
felf.  That  in  what  related  to  grand  juries  it  had  been  ufual  in 
the  fupreme  court  for  the  chief  juftice  to  be  confidered  as  the 
proper  organ  to  ftate  to  them  the  preliminary  matters,  and  what 
that  matter  ftiould  be  was  left  entirely  to  his  difcretion.  So  had. 
been  the  pra&ice  in  the  common  pleas.  If  a  prefident  judge 
was  to  abufe  this  power,  any  other  might  check  him  ;  but  then 
it  fhould  be  in  a  private  converfation,  and  not  by  making  an  ap¬ 
peal  from  him  to  the  grand  jury  :  on  this  point  he  was  told  that 
he  ought  not  to  expedl  to  control  the  whole  bench,  and  oblige 
them  to  abandon  a  fettled  practice. 

Mr.  luucas,  I  have  already  exprefled  my  view  of  the  tranfac- 
tions.  He  alks  queftions  out  of  my  recollection,  and  which 
may  be  difficult  to  afcertain.  So  far  as  his  facts  do  not  agree 
with  mine,  we  difagree.  The  right  to  addrefs  a  petit  jury  was 
granted,  but  in  a  very  fparing  manner.  But  in  refpeCt  to  the 
other  it  was  cxprefsly  declared  that  if  I  had  any  thing  to  fug¬ 
ged  that  I  wifhed  to  have  communicated  to  the  jury,  it  mull  be 
firft  communicated  to  him,  the  judges  would  judge  of  the  pro¬ 
priety  of  it,  and  he  was  to  mention  it.  In  no  cafe  whatever 
was  I  allowed  myfelf  to  addrefs  the  grand  juiy.  I  thought 
the  confequence  refulting  from  this  doCtrine  would  be,  that  in- 
ftead  of  being  a  judge  on  the  bench,  I  and  the^ther  afiociaies 


C  49  2 


were  to  be  merely  counfellors  on  the  bench.  As  a  judge  1  was 
anfwerable  for  the  opinions  I  gave.  He  could  not  anfwer  for 
me.  What  he  might  fay  to  a  grand  jury  fiiould  Hand  upon  its 
own  merit,  and  it  was  but  equal  jufiice  I  thould  Hand  on  mine. 

Mr.  A ddifon.  He  then  admits  that  the  fenfe  of  the  court  was 
againH  him. 

Mr.  Lucas.  It  was  not  the  court ;  we  were  not  in  the  court  - 
houfe,  but  in  a  tavern,  and  the  declaration  of  two  was  not  a 
proof  to  me  that  all  the  judges  of  Allegheny  county  coincided 
in  that  opinion. 

Mr.  A  ddifon.  I  wifh  he  may  be  alked  whether  he  was  not  told 
that  the  affociate  judges  might  in.  cafe  of  error  or  omifiion  in 
the  prelident,  addrefs  the  jury  ;  but  the  moil  decent  way  would 
be  to  communicate  it  to  the  prelident. 

Mr.  Lucas.  I  declare  that  Mr.  Addifon  gave  it  explicitly  as 
his  opinion  that  1  could  not  addrefs  a  grand  jury  under  any  cir- 
cumftances.  Mr.  M‘ Dowell  fupported  Mr.  Addifon,  and  faid, 
the  prefident  was  the  foie  organ  of  the  court,  and  I  had  no 
right  to  addrefs  the  jury  ;  Mr.  Addifon  corrected  Mr.  M’Dow- 
ell,  and  faid  it  was  grand  juries  only  :  to  which  Mr.  M‘Dowell 
alfented. 

Mr.  Addifon.  This  relates  to  the  preliminary  matter  which  - 
all  judges  ufe  in  delivering  charges  to  grand  juries,  and  not 
what  immediately  relates  to  the  duties  of  that  body. 

Mr.  Lucas.  I  repeat  it,  it  related  to  the  whole  fubjed  of 
grand  juries,  and  there  was  no  opening  left  me  to  addrefs  a 
grand  jury.  If  1  was  to  take  their  opinion  for  my  rule,  there 
was  no  way  whatever. 

Mr.  Addifon.  Let  him  be  alked  whether  in  December  1 8oo 
he  did  not  fay  before  he  was  Hopped,  that  it  is  not  any  thing 
relating  to  the  duties  of  grand  juries  on  which  I  am  about  to 
addrefs  them. 

Mr.  Lucas.  I  do  not  recoiled  ever  having  faid  any  fuch 
thing  ;  but  1  do  now  recoiled  a  circumHance  that  did  not  occur 
to  me  before  ;  it  is  this,  that  when  I  was  Hopped  this  time  it 
was  not  with  the  rnildnefs  and  entreaty  that  he  had  ufed  when 
I  conHituted  half  the  court.  He  might  now  have  felt  himfelf 
more  independent  of  me  and  better  fupported,  having  judge 
M‘Dowell  by  his  fide  ;  and  his  manner  appeared  to  me  to  have 
gratified  a  confiderable  number  of  peifons  who  were  in  court. 


[  5°  ] 


Mr.  Addifon.  Well  then,  let  him  be  afked  was  he  going  tf* 
fay  any  thing  to  the  grand  jury,  which  related  to  their  imme¬ 
diate  duties. 

Mr.  L ucas.  I  thought  I  was  going  to  fay  fomething  whicF* 
would  afiift  them  in  the  difcharge  of  their  duty  ;  I  had  heard 
Mr.  Addifon  denounce  from  the  bench  a  defcription  of  men* 
in  a  manner  likely  to  render  thofe  who  are  within  it,  obje&s  of 
perfection,  if  any  of  them  fell  under  the  cognizance  of  the 
grand  jury.  I  had  heard  Mr.  Addifon  tracing  the  hiftory  of 
and  declaiming  againft  the  focieties  of  Illuminati  in  Germa¬ 
ny,  the  Jacobins  in  France.  And  after  having  painted  thefe 
in  the  moft  frightful  colours,  their  black  defigns,  their  horrid 
wickednefs,  tending  to  fubvert  all  civil  and  focial  order,  he 
went  on  to  alarm  us  with  our  own  danger-  He  faid  thefe  fo¬ 
cieties  had  their  emiflaries  among!!  us  ;  they  were  daily  making 
converts  in  our  country,  they  were  growing  very  powerful,  and 
he  feared  the  confeqaences-  He  added,  as  proof  of  the  exift- 
ence  of  fuch  emiflaries  making  profelytes,  certain  resolutions  of 
the  ftate  of  Kentucky,  on  the  unconftitutionality  of  certain 
adls  of  Congrefs.  He  produced  alfo  the  refolutions  of  Virgi¬ 
nia  ;  (1  am  not  certain  that  I  ufe  his  words,  but  in  the  ideas 
I  am  not  miftaken).  To  fliew  that  they  were  rapidly  fpreading 
their  baleful  influence  into  this  ftate,  he  adduced  the  turn  the 
recent  eledlion  for  Governor  of  Pennfylvania  had  taken  ;  and 
from  all  this  he  inferred  that  fuch  perfons  ought  to  be  difeoun- 
ienanced  as  the  fubverters  of  law,  order  and  good  government. 

I  thought  thefe  declarations,  coming  from  the  bench,  poflef- 
fed  of  fuch  authority  at  fuch  a  time,  might  alarm  and  agitate 
the  minds  of  the  citizens,  and  knowing  when  this  is  the  cafe, 
that  perfons  who  have  fell  under  fuch  fufpicions  feldom  have  a 
fair  trial,  I  wifhed  to  call  the  attention  of  the  jury  to  what  re¬ 
lated  to  their  particular  duties,  and  induce  them  to  leave  out 
of  their  minds  every  thing  relative  to  the  Jacobins  and  Illumi¬ 
nati  of  other  countries.  That  there  they  could  do  us  no  harm  ; 
and  if  they  had  emiflaries  here  to  enfnare  us,  we  had  laws  and. 
magiftrates  to  protedl  us,  and  to  punifli  them  if  they  were  guilty 
of  a  crime.  As  a  member  of  the  court  I  could  not  be  filent, 
and  by  that  filence  give  my  fupport  to  an  hiftoric  narrative  cal¬ 
culated  to  do  fo  much  injury.  I  wifhed  to  remove  their  fears, 
and  difpel  their  apprehenfions,  and  that  is  all  I  intended  to  do. 

Mr.  Addifon.  Whether  he  does  not  know,  or  has  not  heard 
cf  fecret  focieties  in  the  weftern  country,  bound  by  oath  not 
to  divulge  their  tranfa£lions* 


[  5»  ] 


Mr.  Dallas.  I  wifh  the  gentleman  to  be  indulged  to  the  ut- 
moil  limit  in  his  crofs  examination  ;  but  when  he  is  opening  a 
field  of  this  defcription,  and  calls  upon  us  to  ranfack  the  jour¬ 
nals  of  fecret  focieties,  which  are  not  within  the  call  of  the 
Houfe,  and  as  he  infinuates,  with  a  view  to  criminate  the 
members  who  are  not  here  to  defend  themfelves,  I  cannot  avoid 
interfering. 

Mr.  A ddifon.  This  is  no  part  of  my  call.  I  did  not  bring 
the  fubjeCt  in  ;  it  is  the  witnefs  on  the  part  of  the  common- 
wealth  who  has  brought  it  in.  But  is  it  not  the  duty  of  a  judge, 
who  fuppofes  fuch  things  going  on,  and  is  convinced  of  their 
truth  from  the  circumftances  of  the  country,  to  warn  his  fel¬ 
low-citizens  againft  them. 

Mr.  Lucas.  T  am  very  -willing  to  anfwer.  I  know  of  no  fe- 
eret  xocieties  in  the  weftern  country  ;  but  I  know  if  I  was  a 
member  of  one  I  fhould  not  be  obliged  to  anfwer  the  queftion. 

Mr.  A  ddifon.  I  afked  if  he  had  heard  of  any  fuch  thing  ex- 
ifting. 

Mr.  Lucas.  I  never  heard  of  any  fuch  fociety  exifting  in  the 
weftern  country  fince  the  Mingo,  which  diffolved  itfelf  a  long 
time  ago.  I  have  heard  people  aflerting  of  one  another,  that 
they  belonged  to  fuch  or  fuch  focieties  ;  but  I  always  confider- 
ed  this  conduct  as  irritating  and  infulting  to  one  another :  but 
I  have  heard  of  this  but  very  feldom,  and  then  from  very  tri¬ 
fling  characters. 

Mr.  A  ddifon.  He  faid  he  confulted  with  fome  of  his  friends. 
I  afk  who  were  the  friends,  and  what  advice  he  got  ? 

Mr.  MiKean.  After  Mr.  Lucas  had  been  prevented  the  firft 
time  from  addrefling  the  grand  jury,  I  received  an  affidavit 
eftablifhing  the  faCt.  Whereupon  I  made  a  motion  in  the  fu- 
preme  court  for  a  rule  to  fhew  caufe  why  an  information  fhould 
not  be  filed  againft  Judge  Addifon.  Some  time  after  this  Mr. 
Lucas  came  to  Philadelphia  and  called  upon  me.  I  told  him 
what  had  pafled  in  the  fupreme  court,  and  that  there  was  no 
doubt  of  his  right  to  addrefs  the  jury.  I  advifed  him  to  per- 
fift  in  the  exercife  of  that  right,  and  gave  it  as  my  opinion, 
that  inftead  of  leaving  the  bench,  he  ought  to  have  gone  on. 

Mr.  A  ddifon.  It  is  not  to  Mr.  M‘Kean  that  I  allude.  What 
he  did  I  prefume  was  properly  done.  The  perfon  to  whom  I 
alluded  I  will  name;  it  was  Judge  Brackenridge.  And  I  afle 
him  now,  whether  Mr.  Brackenridge  did  not  advife  him  to  this 
bufinefs,  and  whether  he  doea  not  know  that  Brackenridge 


[  52  1 

wrote  petitions,  procured  fignatures,  and  particularly  did  he  not 
advife  to  proceed  by  way  of  information  to  the  fupreme  court 
in  the  firft  inftance,  and  afterwards  by  impeachment  here  ? 

Mr.  M'Keajt.  I  am  again  ft  this  queftion  being  put,  as  it  has 
nothing  to  do  with  the  fubjedt  before  the  Senate.  It  furely  is 
immaterial  to  the  merits  of  the  cafe,  whether  this  gentleman 
or  any  other  perfon  advifed  him  to  proceed  by  information  to 
the  fupreme  court,  and  who  recommended  afterward  the  mode 
of  impeachment,  I  will  tell  him  however  that  from  what  fell 
from  the  judges  of  the  fupreme  court  when  the  rule  to  ftiew 
caufe  was  before  them,  it  might  be  eaftly  inferred  that  im¬ 
peachment  was  the  proper  mode  to  correit  the  evil  complained 
of. 

Mr.  sldd'ifon.  It  is  the  firft  time  in  a  criminal  court  of  juf- 
tice  .that  I  ever  knew  a  witnefs  prohibited  from  anfwering  a 
queftion  of  this  kind.  The  queftion  leads  to  this,  Has  this 
profecution  originated  in  principles  of  public  good,  or  did  it 
atife  from  motives  of  private  malice  ?  And  when  that  is  anfwer- 
ed  I  mean  to  fhew  that  this  profecution  did  not  arife  from  mo¬ 
tives  of  public  good,  but  from  perfonal  malice,  not  on  the  part 
of  the  members  of  the  legislature,  but  from  judge  Brackenridge, 
who  has  not  only  a  perfonal  enmity  to  me,  but  has  fworn  ven¬ 
geance  againft  me,  and  that  he  fet  on  Mr.  Lucas  as  his  inftru- 
ment  ;  that  he  affifted  him  in  preparing  the  charges  he  wanted 
to  deliver  to  the  grand  juries,  and  has  been  the  prime  mover  thro* 
the  whole  tranfaction,  till  its  arrival  at  the  prefent  iffue. 

Mr.  Dallas.  If  the  defendant  is  permitted  to  proceed  in  this 
mode,  it  will  no  longer  be  the  trial  of  judge  Addifon,  but  the 
trial  of  judge  Brackenridge  ;  for  I  venture  to  aflert  if  the 
afierttfons  thrown  out  by  the  defendant  can  be  fubftantiated, 
fouler  afperfion  were  never  proved  on  a  judge.  He  afierts 
that  this  bufinefs  has  arrived  at  the  prefent  ftage  under  the 
guidance  of  motives  the  moft  bafe  and  malignant  that  can  be 
imputed.  He  is  fuppofed  not  to  be  in  purfuit  of  the  public 
good,  but  gratifying  private  malice,  the  growth  of  a  foul, 
tainted  and  corrupt  heart ;  that  he  not  only  writes  libels  againft 
the  defendant,  but  folicited  hundreds  to  fign  them.  A  temper 
that  compels  a  man  in  the  fttuation  of  the  defendant,  to  an  un¬ 
dertaking  fo  foreign  from  his  defence,  will  prove  no  fmall  evi¬ 
dence  to  the  fenate  in  fupport  of  an  opinion  formerly  fuggefted. 
He  appears  to  endeavor,  by  a  fide  wind,  to  impute  motives 
without  giving  even  probable  evidence  that  they  exifted.  Is 
this  the  conduit  before  this  honorable  court,  of  a  man  who 


had  been  ten  years  prelident  of  one  of  your  courts  of  law  ? 
Would  he  admit  in  his  court  as  evidence  fuch  teftimony  ? 
If  he  would  he  could  not  know,  or  knowing  would  not  per¬ 
form  the  duties  of  his  office.  No  doubt  the  underftanding  of 
the  Senate,  although  they  are  not  pradlifing  lawyers,  is  fuffi- 
ciently  informed  to  know,  that  judge  Brackenridge,  who  is 
not  charged,  and  who,  if  he  was,  is  not  piefent  to  defend  him- 
felf,  cannot  by  any  fubterfuge  or  law  fi&ion,  be  placed  here  on 
his  trial  m  the  room  of  the  accufed.  The  character  of  a  judge 
ought  not  to  be  arraigned  on  fuggeftion  without  proof.  Was 
the  legislature  to  countenance  fuch  a  mode  of  proceeding,  every 
place  of  honor,  truft  and  profit,  would  be  abandoned,  or  the 
officers  would  be  driven  with  difgrace  from  the  exercife  of 
their  profeffions. 

I  nope  the  gentleman  will  in  future  treat  the  reputation  of 
other  gentlemen  with  as  much  delicacy  as  he  withes  his  own 
to  be  refpedled  ;  and  that  this  may  be  the  lafh  time  we  fiiall  be 
forced  to  oppofe  a  condudl  that  cannot  arife  from  ignorance, 
be  its  true  motive  what  it  may. 

Mr.  Jlddifon  rofe  with  a  view  to  fpeak,  when 

Mr.  MlKean  interfered,  and  hoped  the  common  rules  of 
proceeding  would  be  adhered  to,  and  that  before  Mr.  Addifon 
was  peimitted  to  proceed,  the  Senate  would  decide  whether 
the  queftion  he  had  juft  put,  was  or  was  not  to  be  anfwered. 

Mr.  WHITEHILL. 

The  gentleman  ought  to  be  permitted  every  mean  of  de¬ 
fending  himfelf ;  but  he  cannot  be  permitted  to  travel  out  of 
the  fubjedt  fo  far  as  to  bring  another  perfon  before  us,  who  is 
not  charged,  with  a  view  to  evade  his  own  impeachment. 
The  gentleman  mentioned  before  that  he  could  ffiew  us  a  clue 
to  this  bufinefs,  and  now  his  clue  is,  that  he  fiippofes  a  brother 
judge,  who  ought  to  oppofe  ufurpation,  has  guided  another 
judge  to  the  place  where  thofe  evils  may  be  corrected. 

Mr.  MACLAY,  Speaker. 

If  Mr.  Addifon  will  reduce  his  queftion  to  writing,  the 
Senate  can  decide  whether  or  not  it  fhould  be  put. 

Mr.  WHITEHILL 

*1  hought  it  unneccffary  to  reduce  the  queftion  to  writing) 

its  impropriety  was  fully  underftood. 


C  54  H 

Mr.  Add'ifon  was  forry  to  have  trefpaffed  on  the  time  of  the  . 
Senate,  and  excited  fo  much  fallibility.  _  He  would  therefore 
wave  the  quefUon,  although  he  thought  it  not  only  unexcep- 
tiowble,  but  important  to  his  defence. 

Adjourned. 

TUESDAY,  January  18,  1803. 

Mr.  Dallas.  When  the  court  adjourned  yefterday  judge  Ad- 
difon  was  crofs  examining  Mr.  Lucas. 

Mr.  Add'ifon.  I  have  no  further  quell  ion  to  put  to  the  witnefs 
except  one.  Is  this  the  charge  he  intended  to  deliver  to  the 
grand  jury  ? 

On  looking  over  it  he  anfwered. 

This  is  the  charge  I  intended  to  deliver  to  the  grand  jury  at 
the  time  I  was  prevented,  and  as  laid  in  the  impeachment. 

Mr.  Addfon.  Did  you  come  to  court  with  the  charge  writ¬ 
ten  out,  and  prepared  to  deliver  it  ? 

Mr.  Lucas.  I  came  to  court  with  niv  charge  written,  but  not 
fully  determined  unlefs  I  perceived  that  what  the  prefident 
lhould  fay  would  fupercede  the  ufefulnefs  of  that  charge  ;  but 
I  perceived  that  it  did  not  fupercede  the  ufefulnefs  ot  that 

charge.  . 

Mr.  M ‘Kean.  I  wifh  the  witnefs  to  ftate  the  circumftances 

which  took  place  at  the  hrll  prevention. 

Mr.  Lucas.  On  the  2  id  December,  .800,  after  Mr  Addi- 
fon  had  delivered  his  charge,  I  waited  or  the  femor  judges  to 
addrefs  the  fame  jury— finding  they  did  not,  I  addreiTed !  the 
fame  jury.  I  pronounced  two  or  three,  or  perhapsfourwo.es, 
as  a  part  of  my  addrefs,  when  1  was  interrupted  by  Mr  Ad- 
difon  in  this  manner :  “  Stop,  Sir  ;  you  have  no  right  to  ad¬ 
drefs  this  jury.  I  am  the  foie  organ  of  *e  court.  To  te 
bell  of  my  recollection  I  anfwered,  t.i.it  1  or  not  c  a. 
right  of  being  the  organ  of  the  court ;  but  I  only  claimed  the 
right  to  be  the  organ  of  my  own  fentiments  to  the  jury,  as  a 
member  of  the  court.  I  attempted  again,  and  was  again  in¬ 
terrupted  bv  Mr.  Addifon.  Whether  1  attempted  again  or  not, 
I  cannot  affirm  ;  but  certain  it  is  I  attempted  thefe  two  .evera 
times.  As  I  was  faying  fomething  to  the  jury,  the  jury  was 
•  moving  and  went  off.  I  recoiled  nothing  more  relating  to 
that  fubjed,  that  is  of  any  importance.  It  was  on  the  c'.t.ung 


f  5f  3 

,f  that  day  therefore  I  left  court,  that  Mr.  Addifon  called  me 

to  the  conference. 

the  attorney-general,  that  ne  nnGu  y 

^ourt  thofe  faCts.  .  .  1 

Mr.  M ‘Kean,  what  you  were  about  to  fay,  did  it  relate  to 

the  duties  of  a  petit  jury  or  what  ? 

M-  I  was.  My  intention  was  to  apprize  the  jury  that  I 

their  Mlcw-citizens  merely  as  fellow-citizens  That  Ihould 
there  be  fu'ch  a  communication  as  was  mentioned  between  1  en- 
tucky  and  Virginia,  it  was  not  within  the  verge  of  them  power, 
and  they  fhould  pay  no  attention  to  it. 

I  attempted  to  fay  on  the  zzd  June,  1801,  what  I  had  at¬ 
tempted  to  fay  on  the  2zd  December,  1800. 

Mr.  Dallas.  When  Mr.  Addifon  adjourned  the  court,  fo  far 
as  he  could  adjourn  it,  was  it  before  or  after  he  left  the  bench  . 
Mr.  Lucas.  The  declaration  of  judge  Addifon,  that  the 

court  might  confider  itfelf  adjourned,  I  do  not  iecol'e*  p 

fedtlv  whether  it  was  made  before  he  .eft  the  enc  , 
coUeh after  he  had  defended  a  ftep  from  the  t-h,  hejaffi 
the  court  was  to  confider  itfelf  adjourned  till  three  o  clocK, 
and  I  recoiled  it  was  contrary  to  my  wilhes. 

William  Gazzam,  affirmed. 

I  was  prefent  at  a  court  of  quarter  feffions  in  Al.egheny  c0Jm 
*y  oT S  day  of  June,  \80i.  My  ennofityv™  -.ted 
to  attend  the  court,  on  account  of  various  political  charges 
which  I  had  heard  of  and  read.  I  heard  the  charge  of  judge 
Vddifon.  His  charge  was  fiiort,  and  did  not  contain  roue  , 
if  any  political  matter,  if  f  recoiled,  at  that  time,  lm  - 
diatelv  after  there  was  a  paper  in  judge  Lucas  s  hand  and 
he  attempted  to  rife.  Judge  Addifon  laid  his  hand  ''fy  gently 
on  Lucas’s  arm.  I  heard  the  following  words  from  ge^ 
cas  :  “  I  mull,  Sir,  inlift  on  my  right  to  addrefs  the  IV 

Lucas  then  again  attempted  to  rife.  Ju  *,  1  -  flmrtcon- 

again  put  his  hand  upon  his  arm,  w.th  a fm  lie  andafhor  co 
verfation.  It  could  not  be  called  an  abfolute  prevention.  I 
third  time  he  did  in  like  manner ;  and  then  I  heard  judge 


I 


C  56  3 


difon  obferve,  let  a  conftable  be  fworn.  Lucas  objeaed  to  it 
and  faid  now  was  the  proper  time  to  addrefs  the  jury  Tudo-e 
Addifon  then  addreffing  the  jury,  faid,  this  gentleman  has 
fometiung  to  deliver  to  you,  which  he  will  not  fnew  to  me,  or 
infoim  me  ol.  Judge  Lucas  then  prefented  the  paper  to  Hr 
Addifon  in  this  manner—"  Here  it  is,  Sir,  vou  may  read  it/* 
1  heard  no  anfwer  from  Judge  Addifon,  nor' did  I  fee  any  ad¬ 
vance  to  take  the  paper,  although  it  was  held  a  fuincient  length 
of  time.  Judge  Lucas  drew  back  his  hand,  rofe,  and  a^ain 
began  to  addrefs  the  jury.  Judge  Addifon  arofe  from  his  feat, 
at  that  moment,  and  faid,  Gentlemen  of  the  jury,  you  may 
go  or  day,  as  you  pleafe,  and  with  a  gentle  turn  towards  the 
bar,  faid,^  fa  far  as  in  me  lies,  you  may  confider  the  court  ad, 
journed  tid  tnree  o  cIock,  and  then  proceeded  to  defcend  from 
the  bench,  and  when  down  one  Hep,  he  turned  round,  and 
in  his  uiuai  emphatic  mode  of  exprellion,  faid,  this  court  may 
confider  itfelf  adjourned  till  three  o’clock.  Until  judo-e  Ad¬ 
difon  expreiicd  a  pohtive  adjournment,  every  one  appeared  to 
be  gaping  at  each  other  with  amazement.  After  which  how¬ 
ever  every  one  prepared  for  departure.  I  am  fenfible  there  was 
no  conftabie  either  chofen  or  fworn  till  the  after  part  of  the 
da}.  If  theie  was,  my  attention  mull;  have  been  turned  off 
for  the  momem,  which  I  cannot  conceive  was  the  cafe. 


At  three  o’clock  ir.  the  afternoon  I  went  to  the  court-houfe. 
J«  ge  Addifon  was  the  (irft  that  came  in,  and  when  feated,  or- 

dereo  the  crj^r  to  go  t°  Steel  Tempks,  Efq.  and  fetch  judge 
M  Dowell.  While  the  conftable  was  gone  judge  Lucas  came 
in,  and  feated  himfelf  on  the  bench.  There  appeared  to  be 
two  o.  three  words,  which  I  did  not  hear— but  judge  Addifon' 

1  h.f  e  a!rea^y  for  judge  MfDowell.  When  Judge 

M  JJowel;  came,  fome  converfation  paffed  fo  low  I  could  not 
Giitinguilh  what  it  was. 


o00n  after  whl'ch  judge  Lucas  arofe  and  attempted  to  addrefs 
tae  IuUr>  ant^  i-  I  miftake  not,  there  was  fome  interruption  of 
a  gentle  nature  again,  by  both  judges  alternately,  for  a  Ihort  time, 
.but  there  was  nothing  of  violence  at  that  time.  Judge  Lucas 

*AU//?tcd  *gaiI!’  and  fF°he  four  or  live  words,  when  Judge 
Addifon  addreffcd  him  in  an  emphatic  manner,  and  in  a  very 
imperious  tone  of  voice.  “  Stop,  Sir,  or  filence  Sir,  I  don’t  re¬ 
coiled  which.  If 'you  do  not  deilft,  we  will  take  means  to 
make  you.  Then  it  was  that  I  obferved  Judge  Lucas  exceed- 
mgi)  dimomrited.  Judge  Addifon  obferved,  I  have  Hopped 
you  once  at  my  own  r ilk,  and  I  am  ready  to  take  the  confe- 
cue..ds  and  fomething  was  added  about  their  being  novv 


C  57  ] 

jointly  ready  to  prevent  him.  judge  Lucas  then  turned  round 
to  judge  M‘Dowell  and  laid,  “  Sir,  is  that  your  determination.” 
He  anfwered,  “  it  is.  Sir.’”  Whereupon  judge  Lucas  fat 
down  the  fpace  of  a  minute — it  appeared  to  me  from  his  coun¬ 
tenance,  thau  he  fat  down  for  a  minute  to  recover  from 
?■  Shock,  which  I  plainly  perceived  he  had  received.  He  then 
aroie  and  left  tiie  bench,  upon  wmch  a  pretty  general 
farcafuc  fmde  or  ineer  tooK.  piace  among  an  the  gentlemen  o^"  a 
certain  defeription — among#  whom  I  was  griev°ed  to  fee  the 
preliding  judge  of  the  court. 

Air.  Dallas.  -Whether  Mr.  Addifon  made  any  overture  in 
the  arternoon  to  read  Mr.  Lucas’s  charge. 

O 

Mr.  Gazzam.  He  made  no  overture  of  the  kind.  If  he 
had  I  fhould  have  obferved  it. 

I  4  * 

Afi  •  Dallas.  Whether  Air.  Lucas  tendered  the  charge  to 
An.  Aadifon  before  Mr.  Addifon  declared  the  court  adjourned  ? 

Air.  Gazzam.  It  was  before  Air.  Addifon  rofe  from  his  feat, 
•before  he  declared  the  court  adjourned,  and  before  Air.  Lucas 
attempted  to  addrefs  the  jury  a  third  time. 

Mr.  Dallas.  Are  you  an  inhabitant  of  Pittfburg,  and  do 
you  remember  to  have  read  thefe  papers?  (/hewing  three  pa¬ 
pers.) 

Mr.  Gazzam.  I  am  an  inhabitant  of  Pittsburgh,  and  1  do 
not  believe  there  has  been  one  of  “  The  Tree  of  Liberty”  that 
I  have  not  carefully  examined,  and  but  very  few  of  the  Pittf¬ 
burg  Gazette  but  I  have  read.  I  have  no  doubt  but  I  examined 
each  of  them  at  the  time  ;  nay,  on  looking  over  them  I  am 
certain  of  it.  I  remember  reading  this  paper,  “  The  Tree  of 
Liberty,”  about  the  nth  April,  1801/  I  read  the  Pittfburg 
Gazette,  containing  the  piece  headed  “  APKean’s  Solomons, 
Brackenridge  and  Lucas.” 

Mr.  Dallas.  Was  Mr.  Addrfon  an  inhabitant  of  Pittfburg  at 
that  time  ?  & 

Mi.  Gazzam.  Pie  was,  to  the  beft  of  my  recolledliom 

Mr*  Addifon.  Whether  the  charge  I  delivered  in  June,  1801, 
was  a  Short  charge  or  a  lopg  one  ? 

.  ,Mr’  was  a  A*01*1  one>  and  the  beft  I  ever  heard 

judge  Addiion  deliver,  becaufe  it  was  very  Short. 

Mr.  Addifon.  What  time  did  the  court  adjourn  ? 

Mr.  Ga^am.  I  can’t  recollea,  but  I  remember  before  that 
hav  ^  ^r‘  k’Jcas  %>  I  have  matter  to  deliver  which  you 


L  58  3 


Mr.  AdJiJon.  Is  it  ufual  to  fwear  a  conftable  to  attend  a 
grand  jury  ? 

°  Mr.  Gazzajn.  I  cannot  tell  ;  but  I  have  been  led  to  believe 
that  it  is  not  very  ufual ;  but  {till  I  think  the  words  were,  let 
a  conftable  be  fworn. 

Mr.  Addifon.  Is  it  ufual  for  a  judge  to  rife  when  he  addrcf- 
fes  a  jury,  and  whether  Mr.  Lucas  rofe  ?  I  alk  this  queuioi* 
merely  to  {hew,  that  the  fame  circumftances  make  different  imT 
preffions  on  different  minds,  and  of  confequence  the  teftimony 
of  no  one  witnefs  is  likely  to  be  correct  as  to  all  the  iacts.  I 
do  not  mean  to  impeach  the  integrity  of  the  yutneis. 

Mr.  Gazzam.  To  the  beft  of  my  recolkaion  Mr.  Lucas  did 
rife.  I  do  not  know  whether  it  is  ufual  or  not. 

Mr.  Addifon.  Did  he  rife  in  the  afternoon  ? 

Mr.  Gazzam .  It  is  my  opinion  that  he  did. 


.  William  Thompson,  fworn. 

Mr.  Dallas.  Was  you  at  court  on  the  22d  June,  l8ci,  and 
what  palled  at  the  time  ? 

Mr.  Thompfon.  On  the  Z2d  June,  1801,  I  was  at  court. 
Alter  judge  Addifon’s  charge  to  the  grand  jury  was  enaed, 
judge  Lucas  attempted  to  fpeak-I  heard  him  fay,  “  Centle- 
men  of  the  jury.”  As  foon  as  judge  Addifon  had  done,  he 
raid,  let  a  conftable  be  chofen.  After  a  fhort  conversion,  Lucas 
attempted  to  addrefs  the  jury  ;  judge  Addifon  interrupted  him 
in  a  mild  way.  Judge  Addifon  then  addrelfed  the  jury,  anu 
faid,  this  gentleman  had  fomething  to  fay,  but  he  did  not 
know  what  it  was— but  as  far  as  lies  in  me,  I  will  confider 
this  court  adjourned  till  three  o’clock.  He  told  the  jury  U.ey 
might  go,  or  ftay,  as  they  pleafed  Immediately  after  ha 
judge  Addifon  arofe,  and  as  he  arofe  from  his  chair,  he  might 
take  a  fteo— but  it  was  but  a  ftep.  He  faid,  1  confider  this 
court  as  adjourned — he  went  down  the  ftep  then,  and  after  ^ 
few  moments  all  that  was  there  attending,  retired. 


At  three  o’clock,  the  firft  thing  I  faw  was  apparently  a  con- 
verfation  between  judge  M‘Dowell  and  Lucas.  Artei  a  01 1 
convention,  Lucas  began  to  addrefs^  the  jury— faid^  ut  a 
word  or  two  till  judge  Addifon  told  him,  “  Stop,  Sir. 
ter  a  few  words  judge  Lucas  again  attempted— when  he  told 
him  again  in  the  fame  manner  to  be  ftlent,  to  itop  if  you 
not,  we  will  make  you. 


[  59  3 


After  that  judge  Lucas  made  a  motion  to  judge  M«Doweif, 
judge  M‘Doweli  made  a  motion  to  him  with  his  head,  and 
judge  Lucas  was  filent,  and  faid  no  more.  A  fhort  time  after 
judge  Lucas  left  the  bench. 

Mr.  Addifon.  Was  judge  Lucas  fitting  or  {landing,  when 
he  attempted  to  addrefs  the  jury,  and  in  the  coniultation  with 
M‘Dowell  ? 

Mr.  Thompfon.  It  appears  to  me  he  was  fitting. 

Mr.  Addifon.  Do  not  the  judges  generally  fit  when  they  ad¬ 
drefs  the  jury  ? 

Mr.  Thompfon.  It  has  been  the  pra&ice  in  Allegheny  county 
— but  I  cannot  fay  judge  Lucas  was  fitting  all  the  time  but 
I  well  remember  in  the  converlation  with  jVI*  Dowell,  they  were 
both  fitting — yet  I  cannot  fay  but  Lucas,  from  being  irritated, 
might  llartj  from  his  feat. 

Air.  Addifon .  Was  my  manner  contemptuous  or  difrefpe£tful 
towards  Lucas  ? 

Mr.  Thompfon.  His  manner  of  fpeaking  is  loud  and  diilindt. 
Though  I  did  charge  him  in  my  mind  for  being  a  little  warm, 
it  might  be  from  a  little  more,  exertion  in  his  manner  of  fpeak- 
ing. 

Mr.  Addifon.  Did  you  obferve  in  me  a  farcaftic  grin  after 
Lucas  had  left  the  bench — infulting  or  fncering. 

Mr.  Thompfon.  There  was  a  fmile  throughout  the  counfel 
and  bar,  and  bench — a  pleafant  fmile. 

Mr.  Addifon.  The  Senate  remember  what  Mr.  Gazzam  faid 
en  this  point. 

William  Ayres,  fworn. 

Mr.  Dallas.  Pleafe  to  relate  what  paffed  on  the  2 2d  June  in 
court. 

Mr.  A  res.  I  was  prefent  on  the  fore  part  of  the  day,  2  2d 
June,  1801.  When  I  went  up  to  court,  there  was  but  two 
judges  on  the  bench,  Addifon  and  Lucas.  Judge  Addifon 
proceeded  to  addrefs  the  grand  jury,  as  ufual.  Soon  after  I 
went  into  the  coiu  t-houfe.  When  the  charge  was  concluded, 
he  mentioned  to  the  grand  jury — “  Choofe  a  conftable,  gentle¬ 
men,  to  attend  you.”  Judge  Lucas  obferved,  he  had  fome- 
. thing  to  fay  to  the  grand  jury,  and  began,  “  Gentlemen  of 
the  grand  jury.”  He  held  a  paper  in  his  hand,  which  I  fup- 
pofed  contained  the  fubftance  of  what  he  intended  to  fay  to 


[  6o  ] 


the  grand  jury.  Judge  Addifon  turned  to  him  and  faid  fome 
thing,  which  1  did  not  diftin&Jy  hear — he  wiihed  him  to  wait, 
I  think,  till  another  judge  came.  Judge  Lucas  obferved,-  that 
was  the  proper  time,  and  he  wilhed  then  to  addrefs  the  jury. 
Judge  Addifon  replied,  he  would  have  the  fame  opportunity 
in  the  after  part  of  the  day,  when  the  court  would  meet,  that 
he  had  then,  at  that  (lage  of  the  bufinefs.  Judge  Addifon 
fpoke  to  the  jury,  and  laid,  this  judge  has  fomething  to  deli- 
liver  to  you,  which  he  had  not  communicated  to  me.  Lucas 
handed  the  paper  towards  him,  and  faid,  here,  read.  Judge 
Addifon  did  not  appear  to  be  difpofed  to  take  the  paper  from 
his  hand.  Lucas  then  faid,  I  will  communicate  to  you,  as 
you  communicated  to  me,  and  then  again  addreffed  the  jury. 
Judge  Addifon  rofe,  and  made  this  obfervation  :  “  That  judge 
is  attempting  to  introduce  a  novelty,  and  as  to  me  the  court 
may  be  conlidered  as  adjourned.”  Then  turned  to  a  window,* 
took  his  hat,  and  faid,  the  court  may  be  conlidered  as  ad¬ 
journed  till  three  o’clock,  and  the  jury  might  llay  or  go  if 
they  thought  proper. 

Mr.  KEAN; 

W  as  the  court  adjourned  with  the  ufual  folemnities  ? 

Mr.  Ayres.  No,  Sir;  entirely  different — no.  proclamation  as 
ufual,  by  the  cryer.  The  ufual  folemnities  of  adjourning  the 
court  were  not  obferved  on  that  occafion. 

Mr.  Dallas.  W as  you  prefent  at  any  preceding  interruption  ? 

Mr.  Ayres.  I  was  not  prefent  at  any  other  time  ? 


Mr.  MACLAY,  Speaker. 

What  time  of  the  day  was  this  interruption  ? 

Mr.  Ayres.  I  think  not  later  than  one.  It  might  be  between 
one  and  two.  I  do  not  diftin&ly  recollect  the  time  of  adjourn¬ 
ment.  The  court  met  at  twelve.  The  ufual  bufinefs  feems  to 
occupy  an  hour,  or  an  hour  and  an  half. 

Mr.  Addifon.  Fiom  the  fize  of  the  paper  in  Lucas’s  hand  did 
ft  not  appear  of  confiderable  length  ? 

Mr.  Ayres.  Lucas’s  writing  appeared  to  be  one  fheet  of  pa- 
ker  folded  ;  it  might  have  been  more  than  one. 

Tarleton  Bat.es,  fworn. 

I  was  prefent  22d  June,  1801.  Prelident  and  Lucas  com- 
jiofed  the  court — prefident  had  delivered  his  charge — Lucas' 
began  to  addrefs  the  jury — the  prelident  told  the  jury,  choofe 
a  conftable.  Lucas  again  began  to  addrefs  the  jury.  Addiion  told 


C  6r  ] 

him  it  was  an  extraordinary  proceeding  and  unufual :  he  in  lift  not 
fto  it.  Lucas  faid,  it  was  his  right ,  and  he  would  proceed. 
While  the  judges  were  converfmg  the  jury  had  chofen  a  con- 
(table,  and  I  believe  the  conftable  had  taken  his  ftafft 

The  prefident  faid,  Lucas  had  not  informed  him  what  he  in¬ 
tended  to  fay  to  the  jury.  Lucas  held  a  paper  towards  the  pre¬ 
fident,  and  faid,  here,  read — obferving  inftantly  before  or  after], 
I  can’t  recollecft,  I  will  communicate  to  you,  as  you  did  yours 
to  me — that  is,  as  I  deliver  it  to  the  jury.  The  prefident  did 
not  attempt  to  take  the  paper,  but  faid,  at  lead  you  will  wait 
till  afternoon,  when  another  judge  will  be  on  the  bench- — and 
faid,  his  right  would  not  be  impaired  by  delaying  it  till  then  ; 
if  he  had  a  right  now,  he  vtould  then.  Judge  Lucas  laid, 
«  No — now  is  the  proper  time,,  and  I  will  addrefs  the  jury.’* 
Ke  began  his  addrefs  again.  The  prefident  at  the  fame  mo¬ 
ment  went  from  his  feat  and  faid,  “  the  jury  if  they  pleafe 
may  (lay  and  hear  the  gentleman  ;  as  to  me  the  court  may  con- 
fider  itfelf  adjourned  till  thi  *ee  o’clock.  He  repeated  again^ 
the  court  may  be  conlidered  as  adjourned  till  three  o’clock,  and 
left  the  bench. 

•  •  V  .  v  f  .  ,  •*  •  .  t  3 

There  was  no  adjournment  of  the  coiirt-=^-and  at  paft  three 
o’clock  judges  Addifoii  and  Lucas  were  on  the  bench.  The 
court  was  opened,  although  it  had  not  been  adjourned,  .  After 
a  few  minutes  judge  M‘Dowell  came,  I  did  not  hear  the  con- 
verfation  between  Lucas  and  M‘Dowell  $  but  after  the  conver- 
fation,  Lucas  began  again  to  addrefs  the  jury.  The  prefident 
commanded  him  to  be  filent,  T.  believe  the  expreffion  was* 
“  Silence,  Sir.”  Judge  Lucas  was  about  proceeding  again  in 
his  charge,  and  turned  towards  judge  M‘Dowell  and  faid, 
“  the  court  command  you  to  be  filent,  Sir.  ’  Judge  Lucas  faid 
he  would  not  be  filent,  and  began  again.  Judge  Addifon  in¬ 
formed  him,  that  the  court  would,  or  know  how  to  enforce  obedi - 
ence. 

There  was  then  filence  on  the  bench,  and  I  did  not  fee  what 
paffed  on  the  bench  after,  as  my  ufual  pofition  is,  with  my 
back  to  the  judges. 

Judge  Lucas  faid,  prevent  me  from  fpeaking,  at  your  peril. 
Judge  M‘Dowell  faid,  we  will  take  upon  ourfelves. 

I  was  prefent  alfo  2 2d  December,  1800.  Judge  Lucas,  af¬ 
ter  the  preffdent’s  charge,  attempted  to  addrefs  the  jury,  aft d 
was  commanded  by  the  prefident  to  be  filent — that  it  was  a  no¬ 
vel  proceeding — the  prefident  had  an  exclufive  right  to  addrefs 

l 


[  62  ] 


the  grand  jury*  Mr.  Lucas  faid  it  was  his  equal  right,  arid 
he  would  addrefs  the  jury.  A  conilable  had  been  chofen,  and 
the  jury  before  Lucas  began  to  fpeak  had  put  themfelves  in 
motion  to  leave  the  box.  The  foreman  again  fat  down — but 
as  foon  as  the  prefident  gave  it  as  the  opinion  of  the  court, 
that  Mr.  Lucas  was  not  to  proceed,  the  jury  left  the  box. 

Mr.  Dallas.  What  was  the  nature  of  the  charge  delivered  at 
that  time  ? 

Mr.  Bates.  It  was  a  political  charge,  and  a  very  violent  po¬ 
litical  charge. 

Mr.  Dallas.  What  time  did  the  court  break  up  in  June, 
1801  ? 

Mr.  Bates.  It  is  ufual  to  meet  at  twelve  o’clock.  The  charge 
was  a  fhort  one  ;  I  think  it  was  half  paid  one,  or  little  more, 
when  the  court  broke  up. 

John  Reddick,  fworn. 

I  was  a  member  of  the  grand  jury,  and  attended  as  fuch  in 
June  term,  1801.  I  made  a  minute  of  the  proceedings  where 
I  got  home,  as  they  appeared  extraordinary. 

The  charge  was  not  lengthy — it  contained  every  thing  that 
had  been  ufual  from  other  judges  on  fimilar  occafions — nothing 
extraneous  either  mixed  or  added.  As  foon  as  he  had  clofed, 
he  directed  the  grand  jury  to  make  choice  of  a  conltable  to  at¬ 
tend  them.  A  converfation  took  place  between  Addifon  and 
Lucas,  and  while  they  were  talking  the  grand  jury  made 
choice  of  a  conltable.  Immediately  after  judge  Addifon  turn¬ 
ed  round  and  faid,  Gentlemen,  Mr.  Lucas  withes  to  addrefs 
to  you  fomething  about  me  ;  but  he  will  not  tell  me  what  it  js. 
There  are  but  two  of  us,  and  \re  can’t  agree  about  it.  Here 
it  is,  faid  Lucas  ;  you  may  read.  Stay,  Mr.  Lucas,  faid  Mr. 
Addifon,  till  the  court  be  full.  No,  faid  Lucas,  now  is  the 
time,  and  proceeded  fo  far  as  to  fay,  Gentlemen  of  the  grand 
jury.  Mr.  Addifon  role  from  the  feat,  faid,  Gentlemen,  I 
will  not  fay  that  you  lhail  not  hear  him  ;  but  as  to  me  you 
may  confider  the  court  adjourned.  He  moved  a  ftep,  Lucas 
renewed  his  addrefs,  judge  Addifon  interrupted  him,  faid,  you 
are  to  confider  the  court  adjourned  till  three  o’clock,  and 
then  walked  away. 

At  three  o’clock  the  fame  two  judges  were  there.  Judge 
M‘Dowell  came  in  and  fat  on  the  right.  Mr.  Addifon  direct¬ 
ed  the  court  te  be  opened.  Mr.  Lucas  leaned  over  and  faid 


fomething  to  M‘Dowell — I  don’t  know  what.  Immediately 
after,  judge  Lucas,  in  a  tone  of  voice  more  loud,  faid,  “  I 
have  a  right  to  fpeak  to  the  jury,  and  I  will  do  it.” — and  be¬ 
gan  again  to  fpeak  to  the  grand  jury.  Mr.  Addifon  interrupt¬ 
ed  him  and  faid,  What  I  did  in  the  forenoon  I  took  upon  my- 
felf  ;  and  now  there  are  two  of  us,  and  we  will  not  fufFer  you 
to  proceed.  How  will  you  hinder  me,  faid  judge  Lucas,  W  e 
will  lhew  you  that,  faid  Mr.  Addifon,  if  you  attempt  to  go 
on.  Mr.  Lucas  made  another  attempt  by  laying,  Gentlemen 
of  the  jury.  Mr.  Addifon  then  addrefled  himfelf  to  Mr. 
M‘Dowell,  and  faid,  (hall  we  direct  the  grand  juiy  to  their 
room  ?  Certainly,  replied  judge  M‘Dowell.  Mr.  Addilon  then, 
in  the  name  of  the  court,  directed  the  grand  jury  to  retire, 
which  they  did. 

Mr.  Dallas.  Did  you  hear  either  Addifon  or  M'Dowell  afk 
a  conference  with  Lucas  ? 

Mr.  Reddick.  I  do  not  know  what  the  converfation  between 
Lucas  and  M‘Dowell  was, 

Mr.  Dallas.  Did  the  grand  jury  exprefs  or  feel  a  defire  to 
hear  the  communication  of  Mr.  Lucas  ? 

Mr.  Addifon.  That  queflion  is  in  part  proper,  and  in  part 
improper.  The  witnefs  may  teftify  as  to  what  the  jury  expref- 
fed  ;  but  he  cannot  as  to  what  they  felt. 

Mr.  Dallas .  Was  the  grand  jury  defirous  of  hearing  Mr.  . 
Lucas  ? 

Mr.  Addifon.  My  obje&ion  is  the  fame  as  to  the  form  of 
this  queflion. 

The  Senate  hereupon  took  a  vote  whether  the  queftion 
{hould  be  put  to  the  witnefs  ;  and  on  the  decilion  there  were 
eleven  members  in  the  affirmative,  and  ten  in  the  negative.  So 
it  was  determined  that  the  qucltion  fliould  be  alked. 

Mr.  Dallas.  Did  any  of  the  grand  jury  exprefs  a  wi(h  to 
hear  Lucas  ? 

Mr.  Reddick.  Two  of  them  fpoke  to  me,  and  defired  to 
hear  it — and  after  they  had  retired  to  the  room,  I  underftood 
generally  they  wifhed  to  hear  Mr.  Lucas — and  we  faid  pleafantly 
— we  ought  to  take  the  court  down. 

Mr.  Dallas.  Did  Mr.  Lucas  rife  to  addrefs  the  jury  ? 

Mr.  Reddick.  I  believe  judge  Lucas  did  not  rife  at  any  time 
when  he  addreffed  the  grand  jury  ? 

Mr.  Addifon.  Was  it  intimated  to  the  court  that  the  grand 
jury  defired  to  hear  Mr.  Lucas  ? 


C  64  ] 


Air.  Reddick .  I  believe  no  intimation  was  given  to  the  court 
of  a  defire  to  hear  Mr.  Lucas  by  the  grand  jury. 

Mr.  M'-Kean  on  the  part  of  the  profecution.  We  here  clofe 
the  teftimony. 

Adjourned. 


THE  SAME  DAY,  at  3  o’clock,  P.  M. 

Mr.  Dallas.  The  teftimony  being  clofed  this  forenoon,  has 
left  me  no  wifh  to  add  to  it,  but  juft  to  call  the  attention  of  the 
Sdnate  to  a  circumftance  refpcdting  the  previous  interruption  of 
Mr.  Lucas  by  the  defendant  ;  we  had  confined  ourfelves  to  the 
interruption  on  the  22dof  June,  1801,  but  the  previous  inter¬ 
ruption  came  out  in  confequence  of  the  crofs  examination  by 
Mr.  Addifon,  and  then  followed  an  account  of  what  fteps  were 
taken  fubfequently.  If  an  unfavorable  impreftion  fucceeds,  he 
cannot  be  furprized.  The  attorney-general  has  informed  you 
what  part  he  took  in  this  traniadfion,  and  the  opinion  of  the 
fupreme  court.  I  called  upon  one  of  the  witneffes  to  prove  the 
notoriety  of  that  event  to  the  citizens  of  the  weftern  counties, 
fo  early  as  April,  1801.  And  l  afk  the  indulgence  of  the  Se¬ 
nate  while  I  read  the  paper  containing  it.  I  do  not  offer  it  as 
conclufive  evidence  that  Mr.  Addifon  knew  of  thefe  publica¬ 
tions^  but  as  a  faff  generally  known  in  his  neighborhood. 


(Here  Mr.  Dallas  read  an  extract  from  “  The  Tree  of  Li¬ 
berty,”  printed  by  John  Ifr^el,  at  Pittfburg,  dated  nth  A- 
pril,  1801,  as  follows,  viz. 


JUDGE  ADDISON. 


We  lately  noticed  a  complaint  againft  judge  Addifon  for  mif- 
condudt  and  ufurpation  of  illegal  authority  on  the  bench,  to 
the  injury  of  one  of  his  affociate  judges.  This  matter  of  com¬ 
plaint  came  before  the  fupreme  court  yefterday,  in  legal  form  5 
the  following  is  an  outline  of  the  tranfa&iom  fo  far  ;  to  the  fu¬ 
ture  courfe  of  the  bufinefs  we  fhall  attend. 

if  -  :  ’  ■  '  ■ 


The  attorney-general  of  the  commonwealth  opened  the  pro¬ 
ceeding,  and  was  heard  on  the  motion  for  a  rule  to  {hew  caufe, 
why  leave  fhould  not  be  given  to  file  an  information  againft  A- 
lexander  Addifon,  on  the  affidavit  of  John  Lucas,  Hating  that 
the  faid  Addifon  being  prefident  of  the  court  of  quarter  feffions 
in  Allegheny  county,  on  delivering  a  charge  to  the  grand  jury, 
had  enjoined  and  enforced  filence  on  his  affociate  Lucas,  who  had 
rifen  and  was  about  to  addrefs  himfelf  in  turn  to  the  grand  jury, 
expreffing  his  diftent  from  what  had  been  delivered  by  the  |ire- 


; 


C  65  ] 


tiding  judge,  and  to  add  to  fuch  matters  of  information  and  ad¬ 
vice  as  might  occur  to  him.  That  in  order  to  deprive  him  of 
his  right  and  the  opportunity  to  deliver  his  fentiments,  the  pre- 
fident  of  the  court,  Addifon,  with  the  only  other  affociate  pre- 
fent,  had  pre-emptorily  ordered  a  conftable  to  be  fworn  and  the 
jury  taken  from  the  bar. 

The  attorney-general  entered  into  a  confideration  of  the 
right  of  the  affociate  to  deliver  his  fentiments  in  any  cafe  to  any 
jury,  as  equal  with  that  of  the  prefiding  judge  on  legal  or  con¬ 
it  it  utional  ground.  He  was  Hopped  at  this  point,  by  the  court 
declaring,  in  the  raoft  unequivocal  terms,  any  elucidation  or  fup- 
port  of  this  principle  to  be  unneceffary,  there  being  no  poffible 
doubt  on  the  right :  but  the  qneftion  was,  whether  this  conduct, 
however  unjtiftifiable, '  was  liable  to  an  information  ?  Was  it  in¬ 
dictable  ?  If  not,  it  could  not  be  the  fubjedt  of  an  information. 

Thereupon  the  attorney  proceeded,  and  undertook  to  main¬ 
tain,  that  the  adt  was  indidlable,  inafmuch  as  it  was  an  ufurpa- 
tion  of  unauthorifed  power,  in  the  prefiding  judge  ;  and  an 
abufe  of  office,  and  as  fuch  in  law  a  mifdemeanon 

The  court  declared  their  ftrong  fenfe  of  the  impropriety  of  the 
conduct  of  the  judge,  but  did  not  think  it  a  fubject  within  their 
cognisance.  There  might  be  a  remedy  in  another  way,  but  it 
did  not  lie  with  them  to  point  it  out. 

It  is  no  more  than  jultice  to  the  fupreme  court,  to  ftate,  that 
in  the  courfe  or  the  argument  and  the  interruption  by  the  court, 
a  ftrong  fenfe  was  expreffed  of  the  indecency,  unhandfomenefs, 
indelicacy  and  unmannerly  condudl  of  the  preiident  ;  at  the 
lame  time  conceiving  that  it  did  not  amount  to  a  crime,  cogniz¬ 
able  by  indidtment  ;  but  that  they  wilhed  it  to  be  underitood  un¬ 
equivocally  as  their  opinion,  that  the  right  of  every  member  of 
the  court  was  equal,  as  to  opinion  ;  the  expreffion  of  that  opi¬ 
nion  in  court,  and  that  any  member  who  ffiould,  in  his  mind, 
diffent  from  thq  reft,  would  be  deficient  in  his  duty,  if  he  did 
not  exprefs  it.  We  prefume  that  the  remedy  alluded  to  by  the 
court  was  an  application  to  the  legifiature. 

The  difeuffion  produced  by  the  above  motion,  has  had  the 
ufefulnefs  of  throwing  fome  light  on  the  conduct  and  character 
of  Alexander  Addiion.  One  would  think  from  the  charges 
he  has  been  accuftomed  to  deliver,  and  efpecially  fome  late 
charges,  that  the  whole  weftern  country,  inftead  of  being 
amongft  the  rnoft  induftrious  and  happy  in  the  Union,  was  up 
,n  arms  and  infurredtion,  and  that  he  was  a  vifitant  for  no  other 
purpofe  but  to  alfuage  the  torrents  of  bloodfiied  in  the  conteft  ! 


[  66  ] 


The  pacific  difpofition  of  the  weftern  people,  has  had  many 
caufes  to  be  diflurbed,  if  fuch  a  difpofition  prevailed  among 
them,  and  not  a  few  from  the  fame  quarter.  But  their  conduct 
and  the  conduct  of  judge  Lucas  is  a  proof  of  the  mildnefs  and 
temper  with  which  they  endure  infult  and  feek  juflice.  Had 
judge  Lucas  infilled  on  his  right,  as  he  might  juftly  have  done, 
what  might  have  been  the  coniequences  among  a  people  lefs  pa¬ 
cific  ?  Had  the  grand  jury  infilled  on  their  right  to  hear  judge 
Lucas  ?  According  to  the  former  violence  of  the  presiding 
judge  moil  probably  he  would  have  oppofed  the  jury  alfo — the 
peace  might  have  been  broken — and  it  is  in  our  recollection, 
that  he  has  been  accufed  of  breaking  the  peace  in  an  outrage- 
us  manner — riot  would  of  courfe  follow,  and  then  the  judge 
if  he  efcaped  whole,  would  have  tp  write  another  volume  on  the 
Ipiiit  of  infurredlion,  and  bring  his  own  conduct  as  a  new  evi¬ 
dence  of  the  caufes  of  revolution  ! 

There  appeared  alfo  in  the  Pittlburg  Gazette  on  the  17th  of 
the  fame  month,  a  piece,  entitled  M‘Kean’s  Solomon’s,  Brac- 
kenri dge  and  Lucas  ;  which  may  be  confidered  as  a  kind  of  an¬ 
swer  to  it  in  favor  of  the  opinions  of  the  county  court. 

(For  the  Pittfourg  Gazette  of  17th  June,  1801,  printed  by 
Jvlr.  Scull,  which  Mr.  Dallas  read,  as  follows,  viz. 

MTyEAN’s  SOLOMONS, 

BRACKENRIDGE  iff  LUCAS, 

In  laft  week’s  Tree  of  Liberty  there  appeared  an  account  of 
the  profecution  lately  attempted  by  John  Lucas  againfl  judge 
Addifon  in  the  fupreme  court  of  Pennfylvania.  This  account 
is  evidently  the  work  of  judge  Brackenridge,  as  it  is  replete 
with  fahhood  and  malicious  invedive  againfl  the  man  he  fo  much 
envies  and  hates:  We  {hall  however  offer  a  few  remarks  upon 
the  publication  as  we  find  it. 

1.  It  is  reludlantly  admitted  that  the  fupreme  court  did  re- 
fufe  to  receive  or  fuflain  the  complaint  of  Lucas  although  fup- 
ported  by  his  own  oath,  and  urged  with  all  the  impreffive  elo¬ 
quence  of  his  royal  highnefs  the  attorney-general :  The  court 
declared  that  they  had  no  cognizance  of  fuch  a  cafe  :  that  no 
information  would  lie. 

This  mull  have  been  extremely  mortifying  to  the  infallible 
Brackenridge,  who,  it  is  faid,  encouraged  Lucas  to  come  for¬ 
ward,  aififled  in  framing  the  affidavit,  earned  down  the  pa- 


[  6?  ] 

t  1 

pers  for  the  cpnfideration  of  the  attorney-general,  and  boafled 
when  he  fat  out,  that  he  would  have  Addifon  broke  before  he 
returned.  The  people  will  know  hereafter  how  to  appreciate 
the  law  learning  of  thefe  great  judges,  who  fo  grofslv  mi  hook' 
the  law  in  a  cafe  of  their  ovvn  which  they  had  fo  deeply  confi- 
dered.  The  Frenchman  may  be  excufed  on  account  of  his  ig¬ 
norance  of  our  language  and  laws — indeed,  we  fincerely  pity 
poor  Lucas,  who  has  now  become  a  fecond  time  the  catfpaw  of 
his  friend  Brackenridge  :  Ke  iliould  have  been  cautious  in  fol¬ 
lowing  farther  the  man  who  had  pufhed  him  forward  to  the  Bea¬ 
ver  creek  affociation  ;  and  then  deferted  him  and  his  deluded 
lettlers,  when  the  warrant  holders  undertook  to  pay  him  well 
for  changing  fides. 

2*  The  ftatement  afferts,  ie  That  the  cohrt  expreffed  a  ftrong 
ftnfe  of  the  indecency,  unhandfomenefs,  indelicacy  and  un¬ 
mannerly  conduit  of  the  prelident,  although  they  conceived  it. 
did  not  amount  to  a  crime  cognizable  by  indiilment.” 

Such  might  have  been,  and  fuch  probably  was  the  language 
of  judge  Brackenridge  over  his  cups  in  a  dram  drop  :  But  it  % 
falfe,  it  is  impoffible,  that  a  fober  court  would  thus  exprefs 
themfelves  reipeitirtg  the  aits  of  another  court,  or  the  prefid- 
ing  judge  of  another  court,  when  they  had  before  them  no' 
teltimony  of  the  fait  but  the  ex  parte  affidavit  taken  by  a  juf- 
tice  lately  conviited  of  high  crimes  in  their  own  circuit  court. 
Mo  court  in  a  civilized  country  would  thus  deal  out  «abufe  at 
random,  without  hill  hearing  the  tribunals  or  the  party  ac- 
:ufed.  No  court  doing  fo  could  deferve  the  name  of  a  court 
af  jultice  ;  but  on  the  other  hand  mull  incur  and  deferve  all 
lie  epithets  which  Brackenridge  in  his  rage  has  unworthily 
Dut  into  their  mouths  agamll  the  county  court  and  its  prehdent. 
>Ve  fay  the  county  court,  becaufe  the  ails  of  the  president 
n  court  when  not  disagreed  to,  are  the  ails  of  the  court.  Ne¬ 
wer  was  feen  a  fouler  libel  upon  any  court,  than  this  bold  alfer- 
lon  that  our  fupreme  court  were  guilty  of  fuch  an  outrage  ay 
o  condemn  and  lligmatize  with  the  harlhell  cenfnre,  another 
:ourt,  and  other  judges,  without  enquiring  into  the  truth  ol 
he  fait,  or  hearing  what  might  be  faid  in  their  defence.  But 
he  author  of  the  calumny  will  gain  his  point  if  knaves  give 
.urrency  to  the  tale,  and  fools  believe  it,  for  he  has  no  appre- 
lenfion  that  the  tribunal  thus  flandered  will  take  the  trouble  of 
•ailing  him  to  account. 

3*  “  I  he  pacific  difpofition  of  the  wellcrn  people  has  had 
nany  caufes  to  be  dilturbed,  if  fuch  difpofition  prevailed  among 
hem  j  and  not  a  few  from  the  fame  quarter.  Had  jud^e  Liw 


[  68  ] 


/ 


cas  infilled  upon  tiis  right,  as  he  might  juftly  have  done,  whal 
might  have  been  the  confequehces  among  a  people  lefs  pacific  ? 
Had  the  grand  jury  infilled  on  their  right  to  hear  Lucas  ? 
The  prefixing  judge  would  moll  probably  have  oppofed  the 
jury  alio — the  peace  might  have  been  broken. ” 

Here  is  the  cloven  foot  of  Brackenridge  ! — -a  riot,  a  mob, 
a  hurly-burly  to  infult  or  to  deltroy  the  man  whofe  virtues  and 
talents  are  io  fuperior  in  public  opinion  to  his  own  !  !  !  We  all. 
remember  the  letter  of  lafl  autumn,  where  this  diabolical  hint 
'was  p-iven  bv  the  fame  man- — wheie  the  fame  cowardly,  vindict- 

O  s  _  J 

ive  temper  endeavored  to  roufe  the  people  of  Crawford  county 
into  fury,  that  he  might  efpoufe  and  avenge  the  private  grudge 
of  Brackenridge.  But  the  weftern  ^people  know  their  interefts, 
their  duties,  and  their  real  friends  too  well  ;  they  have  feen  the 
mad  Will  o’  the  Wifp  change  iides  and  fhape  too  often  to  be 
miflead  fo  far  as  to  trull  his  alfurances  ,  to  believe  in  his  ever  va¬ 
rying  creed,  or  to  regard  his  enmities  or  invedtives  as  an  impu¬ 
tation  againft  the  fairnefs  of  a  man’s  character ;  for  it  will  be 
difficult  to  find  an  honell  refpeclable  member  of  the  fociety 
whom  he  does  not  reckon  and  abufe  as  a  decided  enemy. 


4.  “  The  difeuffion  produced  on  Lucas’s  profecutiOn,  has 
had  the  ufefulnefs  of  throwing  fome  light  on  the  conduct  and 
character  of  judge  Addifon.” 

It  can  have  thrown  none  that  will  not  be  honorable  and  flat¬ 
tering  to  him.  But  it  may  alfo  throw  fome  other  ufeful  lights 
. — fuch  as  that  Mr.  Brackenridge  advifed  Mr.  Lucas  to  form  an 
aflfcciation  of  adventureis  to  fettie  on  lands  held  by  the  Popula¬ 
tion  and  other  companies  under  warrants,  and  to  bind  the  let- 
tiers  by  writing  never  to  compromife  with  their  adverfaries,  but 
through  the  agency  of  their  prime  movers.  That  the  compa¬ 
nies  being  alarmed  bought  off  Brackenridge,  who  then  deferted 
and  enlifted  with  the  companies — Lucas  was  enraged — Bracken- 
ridge  fet  him  up  as  an  affemblyman — the  people  dilplaced  him — 
Brackenridge  becomes  accidentally  a  judge  of  the  fupreme 
court.  By  his  influence  with  our  good  governor  Lucas  is  made 
a  judge  of  the  county  court,  that  juftice  may  be  done  to  hi5 
Beaver  creek  affociates,  cf  whom' governor  M‘ Kean  declared  in 
1 798  every  man  ought  to  be  indicted — Brackenridge  quarrels 
with  judge  Addifon- — fpirits  up  Lucas  to  jabber  broken  Frencfl 
and  be  disorderly  in  court.  The  court  filence  him.  Thefe  So¬ 
lomons  attempt  to  indict  the  county  court,  or  get  an  informa¬ 
tion  filed  againft  them  in  the  fupreme  court  ;  and  are  told  by 
the  fupreme  court  that  they  are  fools,  there  is  no  poffibilit  7  erf 
lupporting  fuch  a  proceeding — Then  to  excufe  themfelves  wit h 


# 


I  Tj 

t  69  ;l 

■4  { , 

'the  people  and  their  friends,  a  libel  is  written  by  the  moon-ftruck 

^  je,ie-q^ally  abuftve  °f  tbe  fuPreme  court  and  county  court. 
And  this  is  the  true  account  of  this  very  weighty  matter,  of 

felfC  1  CVeiy  ““  ma7  CaflIy  ju<igCt  and  jud§e  rightly  for  him- 

*  o  (Ke  theiJ  read  “  The  Tree  of  Liberty  of  the  6th  of  June. 
toGi,  as  follows,  viz. 

Supreme  Court ,  March  Term ,  1801. 

Affidavit  of  John  Lucas,  an  affociate  judge  of  the  county  of 
Allegheny  Hating  that  at  a  court  of  quarter  feffions  of  the  faid 
county,  after  the  prefiding  judge  (Addifon)  had  delivered  his 
c  large  to  the  grand  jury  ;  and  he  the  faid  Lucas  was  about  to 
’deliver  a  charge  alfo,  he  was  Hopped  by  the  faid  Addifon,  and 
cn  ei  e  to  be  iilent  :  I  hat  the  faid  Lucas  not  regarding  this 
interruption,  but  being  about  to  proceed,  the  faid  Addifon 
with  judge  M’Dowel,  the  only  other  alfociate  then  on  the 
ench,  ordered  a  conftable  to  be  fworn  and  the  jury  to  be 
taken  from  the  bar.  Motion  by  the  Attorney  General,  that 
ne  have  leave -to  file  an  information  againft  judge  Addifon  on 
the  ground  of  mifbehaviour  in  this  inftance.  Affidavit  ordered 

to  be  filed,  and  the  Attorney  General  to  be  heard  on  the  fub- 
ject. 

Two  points  made  by  the  Attorney  General, 

1.  That  the  affociate  judge  or  juftice  has  equal  right  witK 
the  prefidmg  judge  or  juftice  to  charge  the  grand  jury.  This 
on  principle,  and  on  authorities.  The  Attorney  was  prepared 
with  books,  and  began  to  open. 

Chier  juftice  Shippen  :  It  is  unneceffary  to  fpeak  to  this  point; 
or  to  read  authorities.  We  will  not  hear  the  right  queftioned  ; 
there  can  be  no  doubt  of  the  right.  The  right  of  every  Judge 
is  equal  as  to  expreffing  himfelf  to  a  jury,  grand  or  petit; 
whether  fupportmg  or  diffenting.  Nay  if  he  difTents  in  opini¬ 
on,  he  is  guilty  of  a  breach  of  truft,  if  he  does  not  exprefs  it; 

bpeak  to  the  fecond  point.  Is  this  condud  the  fubjed  of 
an  information  ?  J 

By  the  Attorney-General.  It  is  a  mifbehaviour  in  office^ 

It  is  a  mifdemeanor.  It  is  an  indidable  offence.  It  is  an 
attack  upon  the  adminiftration  of  juftice.  It  is  a  privation 
of  right  of  the  affociate  to  fpeak  and  of  the  jury  to  hear  i 
It  is  preventable  by  them  as  a  grievance.  It  is  the  fubjed 
or  a  piofecution  by  the  judge  aggrieved* 

K 


I  70  ] 


Chief  jufticc  Shippen  .  The  affidavit  does  not  {late  malice/ 
xu  would  feem  to  be  a  miftake  of  right.  Unleffi  a  crime  is 
ftated  the  court  cannot  take  cognizance.  There  maybe  ano¬ 
ther  remedy.  It  does  not  lie  with  us  to  fay  what  that  is< 
The  proceeding  w  s  arbitrary,  unbecoming,  unhandfome,  un- 
gentlemanly,  unmannerly  and  improper  ;  but  there ^  not  being 
an  imputation  of  wilful  mifbehaviour  and  malice,  it  is  not  m- 
di&able,  or  the  fubjecl  of  an  information.  * 

Mr.  A ddifon.  Of  the  novelty  of  this  evidence  there  are 
many  in  the  Senate  capable  of  judging  ;  it  is  alio  well  known 
to  the  counfel  in  this  cafe,  that  it  is  not  fuch  evidence  as  would 
be  received  in  any  court  of  juflice  ;  they  well  know,  and  many 
gentlemen  here  alfo  know,  that  a  newfpaper  report  of  the  pro¬ 
ceedings  of  a  court  would  not  be  taken  as  a  fair  ftatemeni.  or 
the  proceedings  or  opinions  01  any  court.  1  did  not  w  iiu  <-o 
interrupt  the  reading  of  the  papers  the  counfel  on  the  part  of 
the  managers  had  deemed  necefiary  or  ufeful,  nor  prevent  the 
Senate  from  hearing  any  thing  in  fupport  of  the  impeachment 
they  mic-ht  choofe  to  hear.  I  only  wiffi  now  that  it  may  be 
under  flood  that  the  publication  alluded  to  is  not  iuch  an  ac¬ 
count  of  the  proceedings  in  the  fupreme  court  as  was  to  be  de¬ 
pended  upon,  either  at  that  time  or  the  prefent.  There  is  ano¬ 
ther  fource  from  which  the  truth  might  be  known,  and  from 
which  it  ought  to  have  been  known — -that  is,  a  copv  of  the 
record  of  the  motion  and  of  the  deciftbn  on  the  motion  by  the 
court  might  be  had,  and  a  certificate  of  the  opinions  of  the 
judges  was  alfo  to  be  obtained.  Are  you,  or  was  I  to  take 
the  proceedings  ©f  the  court  from  a  newlpaper,  and  that  too 
from  a  newfpaper  printed  in  the  houfe  of  a  man  who  was  the 
prime  mover  in  all  this  bufinefs.  I  lhall  take  another  opportu- 
nity  to  confider  this  point  more  at  large. 

With  refpefl  to  the  publication  in  the  Pittfburg  Gazette,  fup- 
pofed  to  be  in  anfvver  to  what  appeared  in  the  Tree  of  Liber¬ 
ty,  I  know  not  for  what  purpofe  it  was  read  ;  but  if  I  am  to 
form  an  opinion  I  can  difcover  no  other  motive  than  to  inlinuate 
that  I  was  privy  to  it.  I  appeal  to  this  houfe  whether  this  has 
not  been  the  impreffion  :  if  it  has,  it  is  my  duty  to  do  it  away. 
It  will  be  obferved  that  it  has  not  been  proved  upon  me,  neither- 
fias  the  attempt  gone  beyond  an  infmuation.  I  know  my  own 
redtitude.  1  would  not  violate  my  honor,  my  wnrd  or  my  con- 
fcience.  1  do  then  declare  in  the  prefence  of  the  Senate,  and  in 

*  Judge  Brackenridge  did  not  take  any  part  in  the  delibera¬ 
tion  of  the  court,  or  give  any  opinion. 


It 


C  71  ] 

the  prefence  of  my  God,  that  I  never  faw  that  pfecc  until  I 
faw  it  in  print.  .  lliat  I  never  j^ad  any  hand  either  dire&ly  or 
indireaiy  in  writing,  publifhing  or  perufmg  it,  until  I  faw  it 
in  Scull’s  Gazette. 

Mr  Rofs  faid  the  managers  had  clofed  the  teftimony  on  th- 

TV  Ul£  -Hu°U  01  RePrefentatives,  and  if  Mr.  Addifon 
pleaied  ne  might  proceed  to  make  his  defence. 

Mr.  Addifon.  On  a  proceeding  fo  unufual  in  Pennfylvania, 

ardKV  fintl0n  f°  Unufua! t0  1Tie  5  I  think  I  may  with  propri- 
e*Pea^  ^e  candor  and  indulgence  of  the  Senate,  and  I  be- 
ieech  the  managers  and  their  counfel  for  a  liberal  and  candid  in- 
terp,etation  of  my  conduft.  And  1  hope  it  will  not  be  under- 
vood,  rnrerred  °r  mfinuaded,  that  when  I  fpeak  earneftly  and 
i°"/;  at  \  fpeak  Paffionatdy.  I  hope  it  will  not  be  under- 

feooa  from  what  has  paired  or  may  follow,  that  when  I  Weft 

tnat  this  profecution  originated,  not  from  motives  of  publfe  t00d 

or  public  j uftice  but  from  perfonal  refentment  and  Private°ma- 

rr''  r  do,  mean  to  cail  upon  the  members  of  the 

-riouie  or  their  managers,  any  portion  of  cenlure.  I  mean  it 

not  now,  nor  ever  (hall.  I  think  the  members  have  a&ed  ac- 
tor  ing  to  their  duty.  But  it  will  be  incumbent  upon  me,  be¬ 
came  it  is  nepeflary  to  my  dt  fence,  to  fay,  that  the  impeach- 
mcnt  is  groundlefs,  that  it  has  up  foundation  to  lupport  it  ; 
thimang  myfelf  innocent  can  X  fay  lefs  ?  I  cannot  think  myfelf 
innocent,  and  think  at  the  fame  time  that  the  Houfe  a<fted  pro- 
peny  m  unpeaching  me  ;  but  that  does  not  imply  that  any  mem- 
Uraded  difhonqjly  ;  no,  I  believe  they  aded  with  candor  and 
ought  tne  public  good  m  the  meafure,  but  not  with  iuftice  to 
me.  X  liey  aded,  it  is  true,  upon  the  evidence,  and  thouo-ht 
they  did  right.  I  am  willing  to  believe  this.  ° 

Two  articles  are  exhibited  in  this  impeachment  againft  me. 

The  firft  that  after  Mr.  Lucas  had  delivered  an  addrefs,  to  a 
pcmt  jury  I  laid  it  had  nothing  to  do  with  the  queftion  before 
tm-m,  and  they  ought  not  to  pay  any  attention  to  it.  The 
words  as  laid  in  the  impeachment  haye  been  proved.  On  this 
point  therefore  it  will  become  neceffary  for  me  to  (hew  the  pro¬ 
priety  of  them,  from  the  matter,  manner  and  occafion  ;  that 
ley  were  not  only  juftifiable,  but  refulted  from  a  fenfe  of  du¬ 
ty-  1  his  I  (hall  endeavor  to  (hew  in  the  heft  manner  I  can. 

The  fecond  charge,  that  I  prevented  Mr.  Lucas  from  ad- 
areliing  a  grand  jury  in  open  court.  The  evidence  has  been 
eard,  and  in  a  certain  manner  it  may  be  faid,  the  charge  has 
been  proved.  It  will  be  incumbent  upon  me  to  (hew,  that  that 


t  7*  ] 

was  not  my  aft,  but  the  aft  of  the  court.  It  will  be  in- 
•"ncumbent  alfo,  at  leaf!  it  will  be  proper  to  fhew,  that  in  doing 
this  the  court  did  right  ;  that  they  were  purfuing  a  meafure 
the  bell  calculated  to  promote  a  due  admimftration  of  juftice, 
preferve  harmony,  to  make  a  proper  ceconomy  of  time,  and  to 
prevent  all  ufelefs  difcuffion  and  controverfy.  This  I  will  en¬ 
deavor  to  fhew  ;  but  firft  let  me  obferve,  that  it  might  appear 
to  the  Senate,  from  all  the  teflimony  they  have  had,  and  of  all 
the  yvitneiies  they  have  examined,  no  two  agree  in  the  fame 
words,  or  in  flating  the  fame  circumllances  to  have  happened, 
at  the  fame  time  ;  fome  words  are  put  into  my  mouth  by  one 
witnefs,  but  they  are  not  thofe  ftated  by  Mr.  Lucas;  for  in-' 
dance,  the  words  flop  me  and  take  the  rifle,  is  ftated  by  one. 
Mr.  Gazzam,  faid  I  flopped  him  and  faid,  take  the  rift: — fo 
again  with  refpeft  to  a  conftable  to  be  choien  or  fworn,  there 
is  a  diverfity.  One  faid  the  conftable  was  fworn,  another  faid-- 
and  faid  truly,  that  he  was  chofen  ;  for  no  conftable  is  fworn 
to  a  grand  jury. 

Some  put  this  circumftance  at  the  beginning,  others  at  the 
end.  Mr.  Lucas  alfo  differs  from  himfelf  ;  the  teflimony  he 
has  given  here  does  not  correfpond  with  his  written,  depoution, 
which  was  laid  before  the  fupreme  court.  One  faid  Mr.  Lu-r 
cas  was  {landing  to  addrefs  the  grand  jury,  and  fat  down  to: 
recover  himfelf  from  a  ftiock.  Another  fays  lie  was  fitting  all 
the  time.  1  do  not  by  thefe  obfervations  mean  to  impeach 
the  candor  or  integrity  of  the  witneffes  ;  I  faid  before  and  I 
repeat  it,  that  among  twenty  perfons  the  bc^.  difpofed  to  im¬ 
partiality  and  careful  in  obfervation,  it  would  be  a  chance  if 
any  two  of  them  agreed  in  every  word  and  circumftance.  I 
ftate  thefe  things  merely  to  fhew  the  Senate,  that  in  no  one  dif» 
pofition  they  are  likely  to  have  the  whole  truth  before  them. 
They  will  therefore  leave  their  minds  open  to  receive  new  im- 
preflions  from  other  witneffes  to  be  examined,  and  that  the  tefti- 
rhony  on  my  fide  may  be  juft  as  true  as  the  teflimony  on  th& 
other. 

%  i 

With  refpeft  to  the  circumftance  of  the  adjournment  of  the 
<£curt,  it  will  be  recollefted,  that  it  is  not  fpecifically  laid  in  the 
articles  ;  and,  if  not  fpecifically  laid,  I  am  not  called  upon  to 
anfwer  it  ;  the  counfel  for  the  profecution,  on  their  honor  as 
men,  and  reputation  as  lawyers,  will  not  fay  that  I  am.  They 
may  make  ufe  of  it  to  fhew  my  motives,  if  connefted  with  any 
thing  elfe,  which  is  charged.  I  further  rely  on  the  candor  of 
the  counfel  on  the  part  of  the  managers,  that  it  will  be  admit¬ 
ted  by  them,  that  if  I  fhould  fail,  as  I  truft  I  {hall  not,  theft 


[  73  3 


J  have  not  done  an  unlawful  aft.  If  the  Senate  fhould  be  o i 
opinion  that  the  aft  was  unlawful,  yet  it  cannot  be  confidered 
as  an  offence,  ualcfs  done  wilfully,  knowingly  and  with  an  evil 
intention.  Not  what  ethers  may  think  illegal ;  but  what  I  my- 
felf  thought  illegal.  Perhaps  they  will  urge  iome  circumftances 
3s  evidence  of  evil  intention,  which  I  may  deny. 

Another  thing  I  hope  will  be  admitted,  that  an  indiftment 
is  not  the  proper  method  of  trying  a  difputed  right  ;  and  there 
is  no  difference  in  a  trial  by  indiftment  and  impeachment  : 
they  are  both  modes  of  trying  criminal  offences.  The  rights 
of  parties  may  be  tried  in  a  civil  aftion,  but  not  in  a  criminal 
aftion. 

With  refpeft  to  the  prefent  trial  I  will  juft  add,  that  had  it 
been  near  my  evidence,  I  could  have  brought  forward  a  thou- 
fand  witneffes  in  favor  of  my  conduft  and  charafter ;  but  here 
Jf  cannot  be  expefted  to  bring  down  the  number  which  would, 
have  repaired  to  Jr'ittfburg  to  teffify  in  my  favor.  I  did  indeed 
endeavor  to  procure  the  affiflance  of  the  public,  to  bring  down 
a  few  ;  but  this  was  denied  me,  and  I  fhall  not  trouble  the  Se¬ 
nate  with  more  thau  one  or  two.  I  beg  John  MfDow-ell,  Efq. 
may  be  called. 

Mr.  Rofs.  I  underhand  the  witnefs  now  called  is  the  abaci- 
ate  judge  concerned  with  Mr.  Addifon  in  preventing  Mr.  Lucas 
(rom  exercifmg  his  right  to  addrefs  the  grand  jury,  on  which 
account  he  may  be  deemed  an  exceptionable  witnefs  ;  however 
we  do  not  objeft  to  his  being  heard. 

John  M‘E>owell,  Efq.  fworn. 

Mr.  Addifon  obferved  Mr.  M‘Dowell  was  the  only  judge  on. 
the  bench  with  Mr.  Lucas  and  himfelf  on  the  22d  June,  1801. 
And  as  to  his  credibility  there  could  be  no  objeft  1911.  Let  him 
ffate  what  took  place  in  court  on  that  day. 

Mr.  Dowell,  When  I  came  into  court,  in  the  afternoon 
of  2 2d  June,  1801,  I  found  Mr.  Lucas  fitting  on  the  bench 
with  Mr,  Addifon.  I  went  up  the  flairs,  and  took  a  feat  upon 
his  right.  I  alfo  obferved  the  grand  jury  in  their  box,  which, 
is  not  an  ufual  thing  in  the  afternoon  of  Monday.  Mr.  Lucas 
leaned  aciols  to  fpeak  to  me.  Mr.  Addifon  leaned,  back  in  his 
chair  to  give  room,  and  I  leaned  towards  Mr.  Lucas.  Mr.  Lu¬ 
cas  offered  me  a  paper,  folded  up  in  oftavo,  which  he  faid  was, 
an  addrefs  he  intended  giving  to  the  grand  jury.  I  told  Mr. 
Lucas  I  had  no  curiofity  to  read  it  ;  that  J  thought,  from  an 
>nqident  of  the  fame  kind,  which  happened  fome  time  before, 


/ 


C  74  3 

that  he  underftood  my  opinion  on  the  fubje&,  and  that  I  had 
not  yet  altered  my  opinion.  Mr.  Lucas  told  me  that  he  did  not 
confider  himfelf  bound  by  my  opinion,  or  the  opinion  of  any 
of  the  court.  Lucas  then  attempted  to  addrefs  the  jury.  Mr. 
Addifon  told  him  he  mull  ftop  :  the  opinion  of  the  court  was; 
that  he  mull  not  addrefs  the  jury.  Mr.  Lucas  then  leaned  over 
to  me,  and  afked  me  if  it  was  my  determination  that  he  fhould 
not  deliver  a  charge  to  the  jury.  My  anfwer  was,  “  Yes,  un¬ 
doubtedly,  it  is.  Sir.”  He  attempted  a  fecond  time  to  addrefs 
the  jury.  Mr.  Addifon  fpoke  to  me,  and  faid,  <£  Shall  we  let 
him  go  on.”  My  anfwer  was,  “  by  no  means.”  Mr.  Addifon 
then  told  him  he  mill!  Hop — and  afked  what  means  he  would 
take  to  prevent  him.  Mr.  Addifon  faid,  “  If  you  don’t  defift, 
we  will  be  obliged  to  find  means  to  prevent  you.”  Mr.  Lucas 
then  defifted,  the  jury  withdrew,  and  the  court  proceeded  to 
the  ufual  bufmefs  of  the  afternoon. 

Mr .  Addifon .  Lid  you  obferve  any  improper  or  imperious 

conduct  in  me  toward  Mr.  Lucas  ? 

< 

Mr.  McDowell.  Nor  in  that,  or  any  other  inftance,  either 
to  Lucas  or  any  other  judge,  or  any  other  perfon,  did  I  obferve 
any  improper  or  imperious  conduct  in  Mr.  Addifon. 

Mr.  ylddifcn.  What  palled  between  Lucas,  you  and  I  in 
December,  j8oo* 

Mr.  M* Dowell.  In  December,  1800,  Mr.  Lucas  was  on  the 
pencil  on  Monday  at  the  opening  of  the  court,  which  is  always 
at  twelve  o’clock.  Alter  he  had  delivered  his  charge,  Mr.  Lu¬ 
cas  alfo  began  to  read  a  charge.  He  had  read  fo  far  as  to  con¬ 
vince  me  what  the  tendency  of  the  charge  was.  Mr.  Addifon 
hooped  down  and  alked  me  if  we  fhould  let  him  go  on.  I  told 
him  I  thought  not  ;  it  was  contrary  to  the  rules  of  our  court, 
until  we  had  a  fuller  court,  and  agreed  to  have  our  rules  altered. 

Mr.  Lucas  faid,  his  charge  was  not  relative  to  the  duty  of  a 
grand  jury — but  to  the  political  part  of  the  prefident’s  charge, 
and  ne  had  read  fo  far  as  to  convince  me  it  was  true. 

Mr.  Addifon  and  I  thought  it  heft,  as  Lucas  wras  a  new 
judge,  to  afk  him  to  a  private  conference,  as  he  was  not  ac¬ 
quainted  with  our  rules.  Mr.  Addifon  fpoke  to  him,  and  we 
v\en?  to  a  tavern  in  the  neighborhood  of  the  court-houfe. 

Mr.  Addifon  informed  Lucas,  that  the  court  of  Allegheny 
had  always  been  very  harmonious — and  he  went  on  to  explain 
to  him  the  pra£tice — that  is,  that  the  prefident  fhould  deliver 
the  addrefs  to  the  grand  jury — that  if  he  had  omitted  any  thing. 


C  75  3 

■  he  affociate  might  put  him  in  mind  of  it,  or  explain  himfelf  to 
the  jury  himfelf.  With  refpedl  to  extra  matter,  that  was  left 
entirely  to  the  prefident,  and  that  was  the  rule  we  had  laid 
down. 


Mr.  Lucas  faid  he  did  not  confider  himfelf  bound  by  any 
rule.  I  told  him,  if  that  was  the  cafe,  to  wait  fill  the  other 
judges  came  in,  and  if  they  agreed  in  opinion,  that  every  judcre 
might  deliver  his  opinion,  that  then  I  had  no  objection  ;  but 
till  then  he  and  I  would  not  agree  to  it. 

I  have  already  faid,  that  in  all  cafes  between  man  and  man, 
or  relating  to  the  duties  of  a  grand  jury,  no  judge  was  ever  con¬ 
trolled  in  it. 

ku  Mr.  Addifon.  Did  I  fay,  I  was  the  foie  organ  of  the  court  ? 

Mr.  Mi  Dowell.  I  don’t  recolledt  that  judge  Addifon  ever 
faid  he  w  as  the  foie  organ  of  the  court,  nor  did  I  ever  make 
ufe  of  fuch  an  expreffion. 

<  It  was  underfiood  by  the  court  to  be  the  mode  in  which  we 
did  the  bufinefs — that  it  was  the  exclufive  duty  of  the  prefi¬ 
dent  to  deliver  the  charges.  It  was  never  difputed  till  by  Mr. 
Lucas  ;  it  has  ever  been  our  cuftom. 

Mr.  Addifon.  Did  you  on  this  occafion  obferve  any  farcaflic 
fneer  ? 

Mr.  Ml  Dowell.  I  obferved  no  farcaftic  fneer,  either  in  court,' 
bar,  or  bye  ftanders.  They  feemed  all  to  behave  with  decency 
and  quietnefs.  If  fuch  a  thing  had  happened,  I  think  1  Ihould 
have  feen  it. 


Mr.  Addifon.  Did  I  ever  endeavor  to  influence  your  judg¬ 
ment  ? 

Mr.  M ‘Dowell.  Judge  Addifon  made  no  attempt  to  influence 
me.  If  he  had  it  would  have  been  ufelefs. 

Lucas  was  informed,  that  if  he  was  diflatisfied  with  any 
thing  of  a  general  natur  in  the  charge,  he  Ihould  mention  it  to 
the  judges  themfelves,  and  not  to  fpeak  of  it  publicly.  He 
was  informed  of  this  at  the  private  conference. 

Mr.  Addifon.  Did  any  of  the  other  judges  find  fault  with 
what  I  delivered  to  the  grand  jury  ? 

Mr.  M‘Z)owr//.  I  never  heard  of  any  of  the  other  aflociates, 
nor  did  I  myfelf,  find  fault  with  what  judge  Addifon  had  de¬ 
livered  to  the  grand  jury. 


i  i 

t  7«  ] 

?  •  \ 

k  I  '  ,  **  -  i 

Mr.  Addifon*:  Since  Mr.  Lucas  obje&ed,  have  I  not  Cortftantty 
confined  myielf  to  the  duties  of  grand  juries  ? 

Mr.  M ‘Dowell.  That  was  the  iaft  charge  the  prefident  ever 
gave  in  Allegheny  county,  which  contained  any  thing  but  the  1 
immediate  duty  of  the  grand  jury. 

Monday  afternoon  in  Allegheny  county  court,  is  always  ap¬ 
propriated  to  orphan  court  bufinefs,  and  it  would  not  be  poll:- 
ble  to  do  the  bufinefs  that  was  to  be  done,  unlefs  we  difcharged 
the  grand  jury  in  the  forenoon.  We  are  frequently  obliged 
to  meet  at  eight  o’clock  to  do  that  bufinefs — not  to  interfere 
with  jury  trials. 

Mr.  Addifon .  Was  you  prefent  at  the  trial  of  Coulter  and 
Moore  ? 

Mr.  M ‘Dowell,  I  was  prefent  at  the  trial  of  Coulter  and 
Moore.  It  was  an  aftion  of  flandei*.  The  words  were  proved 
without  a  doubt.  One  of  the  evidence  faid,  he  had  heard  one 
fay,  at  Beaver,  that,  he  could  have  accefs  to  a  girl  at  Coulter’s 
whenever  lie  pleafed.  He  was  alked  if  he  ever  told  Coulter 
that.  The  man  faid,  no,  he  had  not. 

On  this  occafion  the  prefident  faid  a  good  name  was  more 
precious  than  filver  or  gold.  Lucas  addrelfed  the  jury,  and 
told  them  that  if  a  good  name  was  more  precious  than  filver  or 
gold,  he  ought  to  have  profecuted  that  man  who  faid  he  had 
accefs  to  a  girl  when  he  pleafed — and  he  ought  to  have  taken 
care  of  his  character  if  it  was  fo  precious,  even  in  that  inftance* 
And  the  prefident  told  the  jury,  that  was  extra  to  what  they 
were  fworn  to  try  and  determine.  It  aifo  appeared,  that  Coul¬ 
ter  did  not  know  of  it.  They  were  fworn  to  try  between 
*  Coulter  and  Moore. 

I  thought  judge  Addifon  went  into  the  points  fully.  I 
f  did  not  conceive  Fie  endeavored  to  influence  the  jury  to  give 

exemplary  damages.  I  thought  the  charge  a  good  one,  and 
by  no  means  partial. 

I  never  faw  a  contemptuous  behavior  in  Mr.  Addifon  to¬ 
wards  Lucas. 

I  have  always  thought  we  went  fully  and  candidly  into  the 
evidence  and  law  in  every  cafe — and  I  have  obferved  that  he 
always  receives  hints  from  his  affociates,  with  great  pleafure. 

I  have  always  found  it  fo,  and  he  always  mentioned  the  gentle¬ 
men  that  requefted  him  to  add  fo  and  fo.  I  have  done  it  of¬ 
ten  when  I  thought  there  had  not  been  fufficient  ftrefs  laid  on 
any  evidence,  and  he  always  alked  me  when  he  flopped,  whe- 


C  77  3 


tker  I  was  fully  fatisfjed.  And  in  my  opinion  there  is  no  de¬ 
nomination  of  men  who  could  not  as  fafely  confide  a  caufe  to  him 
as  to  any  judge  in  Pennfylvania,  as  to  integrity,  honefty  and 
law  knowledge. 

Mr.  Addifon.  I  mean  to  prove  by  this  witnefs  the  fignature 
of  the  judges  of  Allegheny  county  to  a  certificate  in  my  hand 
in  my  favor. 

Mr.  Dallas.  It  is  extremely  unpleafant  for  me  to  take  any 
ftep  that  may  hurt  the  feelings  of  the  defendant  ;  but  I  am  in 
fome  degree  relieved  from  this  delicacy  by  his  conduct  on  this 
occafion.  I  will  appeal  to  every  one  prefent,  whether  they  ever 
heard  in  a  court  of  jultice  fuch  teltimony  admitted,  does  not  com¬ 
mon  fenfe  revolt  at  it ;  it  mult  be  for  fome  popular  purpofe,  not  for 
a  judicial  one,  that  this  extraordinary  attempt  is  made.  He  will 
not  commit  himfelf  as  a  lawyer  and  a  man  in  contending  for  the 
admiflion  of  this  kind  of  teltimony. 

Mr.  Addifon.  I  dare  commit  myfelf,  both  as  a  lawyer  and  a 
man,  on  the  corredtnefs  of  this  point.  If  I  did  not  confider 
the  fentence  proper  I  would  not  offer  it.  Generally  fpeaking 
it  is  held,  and  generally  fpeaking  it  may  be  true,  that  the  rules 
of  evidence  on  impeachment  are  the  fame  as  in  the  ordinary 
courts  of  jqftice  ;  but  this  doctrine  muft  be  received  here  with 
fome  qualification.  Was  ever  any  thing  offered  to  a  court 
merely  as  a  court,  and  refufed  to  be  liltened  to  ?  Evidence  I 
admit  may  be  properly  excluded  from  going  before  a  jury  ; 
but  no  evidence  is  excluded  from  a  court.  A  jury  may  be  im¬ 
properly  impreffed  by  improper  teflimony,  but  a  court  knows 
well  what  degree  of  weight  it  ought  to  receive  and  will  allow 
it  no  other. 

Another  circumflance  I  fhall  mention  :  think  of  the  diflance 
I  am  from  home,  and  the  enormous  expence  1  fhould  be  put  to 
;n  bringing  thefe  witneffes  down.  And  a  third  thing  :  thefe 
certificates  were  given  for  the  purpofe  of  being  exhibited  to  this 
court.  Will  any  man  fay  that  the  ligners  are  not  liable  to  pu- 
nifhment  if  they  have  certified  falfely,  knowing  as  they  did  the 
ufe  that  was  to  be  made  of  their  certificates  ?  Though  it  would 
not  amount  to  perjury,  yet  it  would  be  an  attempt  to  divert 
public  juftice,  and  of  courfc  a  public  offence.  With  refpedt 
to  their  punifhment  in  a  future  world,  none  can  doubt  of  that. 
Thus  circumftanced  thefe  certificates  ought  to  be  received  and 
refpe£ted.  Befide,  they  are  from  the  mofl  refpedtable  people, 
the  affociate  judges,  juftices  of  the  peace,  and  gentlemen  of  the 
bar,  the  clergy  and  otheis  of  all  perfuafions  and  parties.  I  afk 


C  78  ] 

whether  thefe  certificates  (hall  be  thus  introduced,  or  referred 
to  another  occafion. 

Mr.  Dallas .  The  defendant  has  no  right  to  complain,  he 
only  fuffers  the  fate  any  and  every  other  perfon  would  be  ex- 
pofed  to  in  a  fimilar  fituation.  Another  might  labor  under 
more  unfavorable  circumftances,  if  inftead  of  Pittfburg  he  re- 
fided  in  England,  would  he  not  be  obliged  to  get  his  teilimony 
from  thence.  The  thing  is  certainly  embarrafimg  ;  but  it  mult 
be  borne  with  ;  jufiice  muft  flow  in  equal  and  regular  flreams. 
lie  complains  that  he  could  not  bring  his  witnefies  forward  at 
the  public  expence.  Men  much  lefs  able  to  bear  the  expence 
than  I  believe  the  defendant  to  be,  are  daily  expofed  to  a  fimilar 
inconvenience.  If  indeed  he  had  brought  down  his  witnefies 
in  the  firft  place,  and  upon  the  trial  been  found  innocent,  juf- 
tice  might  then  ftep  in  and  reclaim  him  from  the  burthen  ;  but 
this  is  never  done  in  the  firft  inftance.  If  luch  an  application 
had  been  made  to  him  on  the  bench,  he  would  have  treated  it 
with  ridicule,  if  not  with  contempt.  It  appears  hoftile  to 
every  proceeding  in  criminal  tribunals.  What  would  he  have 
laid  if  we  had  exhibited  certificates  from  the  witnefies  on  the 
part  of  the  prolecution,  inilead  of  oral  teilimony.  Would  he 
not  fay,  this  is  no  eonftitutional,  no  legal  mode  of  trial.  I 
have  a  right  to  fee  my  accufers  face  to  face,  to  crofs  examine 
the  witnefies  and  fearch  out  the  truth.  If  we  then  had  not  the 
right  to  introduce  fuch  evidence,  neither  can  he  have  it.  The 
rules  of  evidence  are  uniform  and  equal  to  all  men.  I  venture 
to  affert,  that  there  is  not  an  elementary  writer  on  this  point 
that  fupports  his  propofition  ;  the  whole  current  of  authority 
fets  ftrong  againil  him.  He  fays  there  is  a  diftinCtion  between 
this  tribunal  and  the  ordinary  courts  of  juftice  ;  that  you  are 
not  a  court  of  departments,  yet  you  fit  here  to  try  him  upon 
the  evidence,  and  no  alteration  can  be  made  on  that  point  but 
by  a  law. 

I  am  forry  he  has  propofed  to  afk  fuch  a  queftion  of  the 
witnefs  ;  but  if  he  perfifts  I  muft  requeft  that  he  be  inftruifted 
to  reduce  it  to  writing,  in  order  that  the  court  may  decide 
whether  it  lhall  or  fhall  not  be  put. 

Mr.  Addifcn.  I  wave  putting  the  queftion,  as  I  find  it  is 
objected  to.  I  fhall  however  expefl  to  be  allowed  to  read  them 
in  my  defence  by  way  of  argument. 

Mr.  Dallas.  It  will  be  equally  objectionable  in  that  way. 

Mr.  Addifon.  1  did  expeCt  from  the  candor  of  the  gentlemen 
they  would  have  permitted  the  Senate  to  have  heard  the  tefti- 


C  79  ] 

mony  of  fo  many  refpe&able  perfons,  who  had  long  known  tny 
condud  in  public  and  private  life  ;  but  fince  I  have  been  dis¬ 
appointed  I  will  trouble  the  Senate  no  farther. 

Mr.  Rofs.  The  defendant  was  told  when  the  bufinefs  was 
before  the  managers,  (and  he  called  upon  them  on  this  fuojed) 
that  fuch  kind  of  teftimony  would  not  be  admitted. 

Mr.  Addifon  made  no  complaint  of  the  condud  of  the  ma¬ 
nagers;  but  he  did  not  underhand  what  paffed  precifely,  as  the 
gentleman  had  hated  it.  He  thought  they  did  not  refufe  ab- 
folutelv  all  certificates,  but  would  decide  upon  them  when  they 

j 

had  feen  them. 

I  have  done  examining  this  witnefs. 

CROSS  EXAMINATION. 

Mr.  Dallas.  Did  you  hear  Mr.  Addifon's  charge  to  the 
grand  jury  in  June,  1801  ? 

Mr.  M‘ Dowell.  I  did  not. 

Mr.  Dallas.  Had  you  any  knowledge  at  the  time  of  the 
Contents  of  the  paper  Mr.  Lucas  meant  to  read. 

Mr.  M‘ Dowell.  No,  he  offered  it  to  me  ;  but  I  would  not 
read  it.  After  I  had  aiked  him  if  it  related  to  the  immediate 
duties  of  the  grand  jury,  and  he  anfvoered  me  that  it  did  not. 

Mr.  Dallas .  Did  you  know  the  contents  of  the  charge  he 
was  about  to  deliver  in  December,  1800,  when  he  was  pre¬ 
vented  ? 

Mr.  Mi Dowell.  No;  but  he  read  enough  to  convince  me 
it  did  not  relate  to  the  duties  of  the  grand  jury. 

Mr.  Rofs.  You  fa  id  that  Mr.  Addifon  turned  round  and 
afked  you  if  you  approved  what  he  had  faid.  Did  he  alio 
afk  Mr.  Lucas  if  he  approved  ? 

Mr.  M ‘Dowell.  I  don’t  know  that  he  did. 

Mr.  Rofs.  Were  the  other  judges  of  the  fame  opinion  as 
you  in  refped  to  the  extra  judicial  matter  he  had  introduced 
in  his  charge  ? 

Mr.  M 1  Dowell  was  about  to  aniwer,  when 

Mr.  Addifon  oppofed  his  anfwering  the  queffion.  He  did 
not  think  the  managers  authorifed  to  enquire  of  the  witnefs 
what  was  the  political  opinions  of  the  judges. 

The  queffion  waved. 


I  8o  ] 

Mr.  Rofs.  Are  you  fubpcened  on  the  ftate  or  the  defendant  ? 

Mr.  M ‘Dowell.  I  am  not  fubpoened  at  all.  I  came  forward 
voluntarily. 

Mr.  Dallas.  Was  it  necefiary  according  to  what  you  fay  of 
the  rule  of  the  court,  that  the  other  judges  Ihould  agree  to 
the  extraneous  matter  delivered  by  the  preiident  ? 

M».  M 1  Dowell.  He  never  delivered  a  charge  containing  ex¬ 
traneous  matter,  which  I  heard,  that  I  did  not  concur  in. 

Mr.  Dallas.  Did  you  hear  the  charge  about  the  Illuminati 
of  Germany,  the  Jacobins  of  France,  emifiaries  and  fecret  fo- 
cieties  ? 

Mi.  M i Dowell.  I  did,  and  I  perfectly  concurred  in  it. 

Mr.  Addifon.  Did  you  hear  of  fecret  focieties  exiftino-.  in 
the  weftern  country  ?  & 

Mr.  M‘ Dowell .  I  did. 

Adjourned. 

WEDNESDAY,  January  19,  1803. 

Mr.  Addifon  on  looking  over  his  note  found  that  he  had  omit¬ 
ted  to  enquire  of  Mr.  McDowell  as  to  one  or  two  circumftances' 
of  lome  importance,  beouufe  Mr.  Lucas  could  not  recoiled! 
them  ;  he  therefore  wifhed  Mr.  MfDowell  to  be  called. 

Mr.  M ‘Dowf//  appeared. 

Mr.  Addifon.  Do  you  recolleft  in  the  cafe  of  Coulter  ao-ainft 
Moore,  that  in  addreffmg  the  grand  jury  I  did  not  fay  that  al¬ 
though  parents  and  mailers  were  bound  to  provide  for  the  fup- 
port  of  their  children  and  fervants,  yet  they  are  not  bound  to 
bring  a&ions  of  Hander  againft  their  defamers. 

„  Mr.  M ‘Dowell.  Yes,  and  you  added  that  a  man’s  not  bring-' 
ing  an  aftion  againft  one  who  Hole  his  horfe,  would  not  there¬ 
fore  be  prevented  from  profecuting  another  for  Healing  hit 
cow.  0 

^Ax.  Ad cUfon  faid  there  was  a  gentleman  accidentally  prefent. 
He  wdhed  him  to  be  examined.  He  had  been  counfel  of  the 
plaintiff  in  the  cafe  of  Coulter  vs.  Moore 

David  Hayes,  Efq.  fw  orn. 

I  was  prefent  at  June  term,  when  Mr.  Addifon  appeared  at 
ulual  to  deliver  a  charge  to  the  grand  jury. 


£  8.  1 

Mr.  Addifon.  It  is  not  to  that  point  I  have  called  the  witnefs. 
It  is  to  relate  what  took  place  in  the  caufe  between  Coulter  and 
Moore  in  March  term,  and  whether  my  condudt  toward  Mr* 
Lucas  was  infulting  or  arbitrary. 

Mr.  Hayes .  It  came  out  on  the  trial,  that  a  certain  D.  Whit¬ 
ing  had  flandered  Coulter  ;  but  it  did  not  appear  that  Coulter 
had  been  informed  of  that  circumilance.  Yet  Mr.  Lucas  faid 
that  as  Coulter  had  not  brought  an  action  of  Hander  in  that 
cafe,  it  ought  in  this  cafe  to  go  in  mitigation  of  the  damages. 
Mr.  Addifon  then  faid  that  it  had  nothing  to  do  with  the  pre- 
fent  trial,  and  added  what  has  already  been  given  in  teilimony 
relative  to  mailers  and  fervants. 

Mr.  Addifon.  Had  this  man  flandered  Coulter  particularly, 
or  was  it  the  fervants  he  had  flandered  generally. 

Mr.  Hayssi  He  had  faid  that  Coulter  kept  bad  women  about 
his  houfe,  and  that  there  was  a  certain  girl  there,  of  whom 
D.  Whiting  had  knowledge. 

Mr.  Addifon.  Did  you  fee  any  thing  contemptuous  or  paf- 
fionate  in  my  manner  ? 

Mr.  Hayes ,  I  did  not  fee  any  thing  of  the  kind  ? 

Here  the  teilimony  clofed. 

Mr.  DALLAS. 

Mr.  Speaker ,  and 

Gentlemen  of  the  Senate , 

I  confefs  I  never  rofe  to  difeharge  a  profeffional  duty  with 
greater  regret,  than  on  the  prefent  occafion.  There  are  recol- 
lections  on  my  mind  that  render  the  profecution  particularly  un- 
pleafant  and  inconvenient.  But  the  general  theory  which  t 
have  formed,  refpecling  the  duties  of  the'  profeflion  ;  and  the 
nature  of  the  office,  which  I  hold  under  the  United  States, 
feemed  to  have  deprived  me  of  all  right  of  opinion,  upon  be¬ 
ing  honored  with  the  call  of  the  managers.  I  fay,  I  rife  with 
regret  ;  and  that  regret  is  encreafed  with  the  weight  of  the 
teilimony  that  has  been  delivered.  In  fupport  of  the  impeach¬ 
ment,  I  have  heard  much  more  than  I  expelled  to  hear  : 
While  in  aid  of  the  defence  I  have  heard  lefs  than  it  was  rca- 
fonable  to  fuppofe.  The  queilion,  however,  now  fubmitted  to 
this  fenate  is  of  the  greatell  public  importance  ;  and  neither  its 
the  profecution,  nor  in  the  decifion  of  that  queilion,  mud  fen- 
timents  of  a  private  nature  intermingle.  It  is  my  duty  to  di¬ 
vert  myfelf  of  all  perfonai  feelings ;  and  the  members  of  the 


I 


C  Si  ] 

fenate  will  deem  it  their  duty  to  divert  themfelves  of  any  feel 
mgs  of  refentment,  of  any  influence  of  prejudice,  ao-ainft  the 
defendant,  proceeding  from  an  extra-judicial  view  oAiis  tranf- 
attions  :  So  that  the  trial  may  be  terminated,  as  it  has  be^-un, 
m  a  fair,  manly  and  liberal  manner,  in  relation  to  the  profe- 
cutors,  to  the  defendant,  and  to  this  honorable  court. 

.  Proitcutiou  IS  founded  on  a  charge  of  arbitrary,  tyran- 
mcai  and  unconftitutional  condud,  in  an  elevated  magiftrate. 

hen  the  houfe  of  reprefentatives  received  information,  that 
fuch  conduct  had  taken  place  ;  that  it  had  excited  uneafmefs 
in  the :  pubbe  min'd  ;  that  it  had  degraded  the  character  and  of- 
nee  of  an  affociate  judge  ;  that  it  had  prortrated  the  peace  and 
mgnity  of  our  tribunals  ;  and  brought  into  fufpicion  the  ad- 
mmucranon  or  jurtice;  no  man,  except,  indeed,  the  immedi¬ 
ate  object  Oi  profecution,  could  herttate  to  declare,  that  it  was 
a  duty  incumbent  upon  the  houfe  to  enquire  into  the  fads. 
Whatever,  therefore,  have  been  the  inrtnuations  of  the  defend¬ 
ant  relative  to  the  origin  of  the  impeachment,  I  am  fure  it  is 
felt  by  an,  w.xo  have  likened  to  the  evidence  with  an  impartial 
ear,  tnat  luch  mlinuations  are  groundlefs.  Nothing  has  ap¬ 
peared  before  the  fenate,  that  can  implicate  any  private  perfon, 
or  any  public  character,  in  any  manner,  as  having  malicioufly 
let  on  foot  this  profecution  :  for,  without  adverting  to  its  ori¬ 
gin,  as  it  lies  difcloied  in  the  memorials  and  compkints  of  the 
people,  upon  the  tables  of  the  legiflature.  I  repeat,  that  every 
man  of  candor,  who  has  heard  the  teftimony,  muft  pronounce, 
that  the  houfe  of  reprefentatives  would  have  been  unmindful  of 
neir  high,  public  truft,  if,  after  an  inveftigation  of  the  fads, 
they  had  omitted  to  put  the  defendant  upon  his  trial. 

The  truth  of  the  fads  charged  has  been  acknowledged  in 
a!iC£  n  e  defendant  ;  and  has  indeed  been  incontrovert i- 
biy  eftabnlhed  by  the  witneffes.  Thofe  witneffes  have  ap¬ 
peared  before  you,^  with  a  delicacy  and  eircumfpedion  of  de¬ 
portment,  which  places  them  far  above  fufpicion,  or  reproach'. 
Tven  the  defendant  admits  them  to  be  entitled  to  the  fulleft 
confidence,  and  incapable  of  being  aduated  by  prejudice,  or 
mahee  ;  infomuch,  that  firft  before  I  rofe,  a  witnefs  was  called 
by  the  defendant,  who  began  to  relate  what  had  taken  place 
m  the  early  ftage  of  the  bufinefs  ;  but  the  defendant  himfelf 
mentioned,  that  he  did  not  wifh  to  amplify  on  thofe  points,  as 
the  teftimony  given  for  the  profecution,  might  be  relied  on. 

fatimf  me  1  Pr.cceed  ""mediately  to  the  fubjed  of  accu- 

,  lcmmd  you,  Sir,  that  on  the  part  of  the  defendant, 


L  83  ] 

there  has  been  no  juft  ground  of  complaint,  though  fomething 
like  the  language  of  complaint  has  b^een  uttered.  It  is  true, 
that  applications  have  been  made  by  him,  and  rejected  by  you  ; 
but  is  it  not  equally  true,  that  they  would  alfo  have  been  re¬ 
jected,  if  they  had  been  made  by  any  other  perfon  :  The  law 
knows  no  diftinftion  of  charafters.  If  fuch  applications  had 
been  made  to  the  court  in  which  he  prefides,  I  am  fare  he 
would  not  have  agreed  to  allow  them.  There  is  no  hardfhip  in 
his  fuffering,  what  every  other  citizen  would  have  to  endure,  if 
placed  in  his  iituation.  If  this  houfe  declined  to  aid  him  in 
bringing  his  witneffes,  by  advancing  him  money,  the  fame 
would  have  been  done,  under  any,  and  ail  ether  impeachments  ; 
in  any  and  every  profecution  of  a  criminal  nature. 

If,  likewife,  in  the  courfe  of  the  trial,  the  learned  gentle¬ 
man  has  attempted  to  introduce  improper  teftimony,  and  that 
has  been  withftood  on  the  part  of  the  managers.  i  heir  con¬ 
duct  is  not  only  juftifiable,  but  commendable.  They  are  bound 
to  proceed  in  a  manner  beft  calculated  to  promote  jultice  ;  and 
efpecially  to  preferve  inviolate  the  fundamental  rules  of  evi¬ 
dence,  which  form  a  key-ftone  in  the  great  arch,  that  fuftains 
the  adminiftration  of  juftice.  Loofe  certificates,  not  upon 
oath,  prefented  here,  on  proof  of  the  hand  writing  of  the 
figners  only,  could  not  with  any  juftice  or  fafety  to  the  ftace, 
the  people,  or  the  defendant  himfelf,  be  admitted.  L  tot 
figners  had  been  here,  and  in  prefence  of  the  fenate  wrote  whole 
volumes  of  panegyric,  the  manufeript  could  riot  be  received  ; 
nay,  an  oral  panegyric  delivered  on  this  floor,  couid  not  be  re¬ 
ceived,  unlefs  it  was  delivered  upon  oath.  Let  it  not,  tnere- 
fore,  go  abroad,  that  any  thing  in  this  cafe  differs  from  what 
takes  place,  upon  principles  of  law  and  juftice,  in  e\ery  Caie. 
And  I  repeat  the  wifh  that  every  prejudice  fhould  give  way  ; 
and  that  no  party,  or  perfonal  confideration,  fhould  ha'  e  the 
fmalleft  effect  on  the  decifion  ;  but  that  Alexandei  Addifon 
fnall  ft  and,  or  fall,  by  the  teft  of  the  conftitution,  the  law  end 
the  evidence. 

I  fha.ll  now  proceed  to  endeavor  to  fupport  the  prefent  profe¬ 
cution,  in  three  points  of  view  : 

Firjl.  That  it  is  the  right,  and  the  duty  of  an  affociate 
judge,  to  addrefs  a  grand  jury,  as  well  as  a  petit  jury,  upon  fub- 
je&s  judicially  before  the  court. 

Second.  That  by  depriving  Mr.  Lucas  of  his  right,  and  pre¬ 
venting  his  performance  of  this  duty,  judge  Addifon  has  been 


4 


[  *4  ] 

guilty  of  an  illegal,  unjuft,  and  unconftitutional,  mifdemennor  i* 
office. 

Third .  That  for  an  offence  of  this  defcription,  an  impeach¬ 
ment  is  the  appropriate  remedy. 

^  i.  The  convention  that  framed  the  prefent  conftitution  of 
Pennfylvania,  were  invefted  with  authority  to  arrange  all  the 
departments  of  government,  to  create  all  the  neceffary  offices 
for  diicharging  the  legislative,  executive,  and  judicial  duties, 
and  to  beftow  on  every  officer  that  proportion  of  power,  which 
was  thought  neceffary  ror  the  execution  of  his  particular  truft. 
Wnen  we  recur  to  the  conftitution,  we  trace  the  difiributive 
powers  of  the  departments,  and  of  the  officers  of  the  govern¬ 
ment.  In  the  Senate,  for  inftance,  we  find  a  depofitary  of  le¬ 
gislative  authority  5  but  all  its  members  are  equal  to  each  other 
in  power  ;  ana  one  member  can  no  more  ufurp,  or  annihilate 
the  rights  of  another  ;  than  can  the  legiflative  departments 
ufurp  or  annihilate  the  rights  of  the  executive,  or  individual 
departments  or  the  government.  So,  as  to  the  individual  au¬ 
thority,  the  judges  of  the  Supreme  court  are  each  equal  in 
pow  er  to  the  ocher,  and  can  no  more  ufurp  or  annihilate  the 
rights  Gf  each  other,  than  they  could  ufurp  or  annihilate  the 
rights  of  the  legislative  and  executive  departments. 

Let  us  turn  to  the  5th  article  of  the  conftitution, 

ARTICLE  V. 

Section  1.  The  judicial  power  of  this  commomvealth  /hall 
be  vefted  in  a  Supreme  court,  in  courts  of  oyer  and  terminer 
and  general  gaol  delivery,  in  a  court  of  common  pleas,  orphans’ 
court,  regifter’s  court,  and  a  court  of  quarter  feffions  of  the 
peace  for  each  county,  in  juftices  pf  the  peace,  and  in  Such 
other  courts  as  the  legislature  may  from  time  to  time,  eftablifh. 

Section  2.  The  judges  of  the  Supreme  court  and  of  the  Se¬ 
veral  courts  of  common  pleas  Shall  hold  their  offices  during  good 
behavior  :  But  for  any  reafonable  caufe,  which  Shall  not  be  fuf- 
ficient  ground  of  impeachment,  the  governor  may  remove  any 
of  them,  on  the  addrefs  of  twro -thirds  of  each  branch  of  the 
legiflature.  The  judges  of  the  Supreme  court  and  the  prefi- 
dents  of  the  Several  courts  of  common  pleas  Shall,  at  ftated 
times,  receive,  for  their  Services,  an  adequate  compensation  to 
be  fixed  by  law,  w'hich  Shall  not  be  diminished  during  their  con¬ 
tinuance  in  office  ;  but  they  Shall  receive  no  fees  or  perquifites 
of  office,  nor  hold  any  other  office  of  profit  under  this  com¬ 
monwealth. 


E  8*  ] 

Se&ion  3.  The  j.urifdi£tion  of  the  fupreme  court  fnall  ex¬ 
tend  over  the  ftate,  and  the  judges  thereof  fhall,  by  virtue  of 
their  offices,  be  jufticcs  of  oyer  and  terminer  and  general  gaol 
delivery  in  the  feveral  counties. 

Seftion  4.  Until  it  fhall  be  otherwife  directed  by  law,  the 
feveral  courts  of  common  pleas  fhall  be  eftablifhed  in  the  fol¬ 
lowing  manner  :  The  governor  fhall  appoint,  in  each  county, 
not  fewer  than  three,  nor  more  than  four  judges,  who,  during 
'their  continuance  in  office,  fhall  refide  in  fuch  county  :  The 
ftate  fhall  be  divided,  by  law,  into  ciicuits,  none  of  which 
fnall  include  more  than  fix,  nor  fewer  than  three  counties  :  A 
prefident  fhall  be  appointed  of  the  courts  in  each  circuit,  who, 
during  his  continuance  in  office,  fhall  refide  therein  :  The  prefi¬ 
dent  and  judges,  any  two  of  whom  fhall  be  a  quorum,  fnall 
compofe  the  refpe&ive  courts  of  common  pleas. 

Se&ion  5.  The  judges  of  the  court  of  common  pleas,  in  each 
county,  fhall,  by  virtue  of  their  offices,  be  juftices  of  oyer 
and  terminer  and  general  gaol  delivery  for  the  trial  of  capital, 
and  other  offenders  therein  :  Any  two  of  the  faid  judges,  the 
prefident  being  one,  fhall  be  a  quorum  ;  but  they  fhall  not  hold 
a  court  of  oyer  and  terminer  or  general  gaol  delivery  in  any 
county,  when  the  judges  of  the  fupreme  court,  or  any  of  them, 
fhall  be  fitting  in  the  fame  county.  The  party  accufed,  as 
well  as  the  commonwealth,  may,  under  fuch  regulations  as 
fhall  be  prefcribed  by  law,  remove  the  indi&ment  and  proceed¬ 
ing,  or  a  tranfcript  thereof  into  the  fupreme  court. 

Section  6.  The  fupreme  court  and  the  feveral  courts  of  com¬ 
mon  pleas  fhall,  befide  the  powers  heretofore  ufually  exercifed 
bv  them,  have  the  powers  of  a  court  of  chancery  fo  far  as  re¬ 
lates  to  the  perpetuating  of  teftimony,  the  obtaining  of  evi¬ 
dence  from  places  not  within  the  ftate,  and  the  care  of  the  per- 
fons  and  eftates  of  thofe,  who  are  non  compotes  mentis  :  And  the 
legiflature  fhall  veft,  in  the  faid  courts,  fuch  other  powers  to 
grant  relief  in  equity  as  fhall  be  found  neceffary  ;  and  may, 
from  time  to  time,  enlarge  or  diminifh  thofe  powers,  or  veft: 
them  in  fuch  other  courts  as  they  fhall  judge  proper  for  the  due 
adrniniftration  of  juftice. 

Section  7.  The  judges  of  the  court  of  common  pleas  of 
each  county,  any  two  of  whom  fhall  be  a  quorum,  fhall  com¬ 
pofe  the  court  of  quarter  feffions  of  the  peace,  and  orphans’ 
court  thereof :  And  the  regifter  of  wills,  together  with  the  faid 
judges,  or  any  two  of  them,  fhall  compofe  the  regifter’s  court 
of  each  county. 


M 


[  Si  J 


.  Section  S.  The  judges  of  the  courts  of  common  pleas  fjiaTfy 
within  their  reipecttive  counties,  have  the  like  power  with  the 
judges  of  the  fupreme  court,  to  iflue  writs  of  certiorari  to  the 
juftices  of  the  peace,  and  to  caufe  their  proceedings  to  be 
brought  before  them,  and  the  like  right  and  juftice  to  be  done. 

Sedlion  9.  The  prefident  of  the  courts,  in  each  circuit, 
within  fuch  circuit,  and  true  judges  of  the  court  of  common 
pleas,  within  their  refpe&ive  counties,  {hall  be  juftices  of  the 
peace  fo  far  as  relates  to  criminal  matters. 

Sedtion  10.  The  governor  fnall  appoint  a  competent  number  of 
juftices  of  the  peace,  in  fuch  convenient  diftricts,  in  each  coun¬ 
ty,  as  are  or  lhall  be  directed  by  law  ;  They  {hall  be  commif- 
fioned  during  good  behavior  ;  but  may  be  removed  on  convic¬ 
tion  of  mifdemeanor  in  office,  or  of  any  infamous  crime,  or  on 
the  addrefs  of  both  houfes  of  the  legiflature. 

Section  11.  A  regifter’s  office  for  the  probate  of  wills  and 
granting  letters  of  adminiftration,  and  an  office  for  the  record¬ 
ing  of  deeds  (hall  be  kept  in  each  county. 

Section  12.  The  ftile  of  all  procefs  ffiall  be,  ^The  Common- 
wealth  of  Pennfjfaama ;  all  profecutions  {hall  be  carried  on  in 
the  name  and  by  the  authority  of  the  commonwealth  of  Penn- 
fylvania,  and  conclude  Againjl  the  peace  and  dignity  of  the  fame. 

I  lay  it  down  as  a  general  refult  to  be  deduced  from  this  ar¬ 
ticle,  that  the  prefident  and  afiociate  judges  of  the  courts  of 
common  pleas,  in  their  powers  and  duties,  as  judges,  are  placed 
on  a  ftridt  footing  of  equality,  and  have  equal,  co-exteniive  au¬ 
thority.  This  equality  arnes,  indeed,  not  only  from  the  con- 
ftitution  of  the  office,  but  from  the  very  nature  of  the  judicial 
character.  But  ftillby  the  conftitufion  they  are  made  equal  to 
the  tenure  of  their  office,  or  each  holds  it  during  good  behavior. 
Do  they  meet  as  a  court  of  common  pleas  ?  Any  two  of  the 
judges,  whether  two  aftociates,  or  an  afiociate  and  a  prefident, 
may  conftitute  a  court.  Do  they  meet  as  a  court  of  quarter 
fe ffions  ?  Again,  any  two  conftitute  a  court.  In  the  cafe  of 
the  court  of  oyer  and  terminer,  any  two  of  the  judges,  the 
prefident  being  one,  ftiafi  be  a  quorum  :  but  even  in  this  cafe, 
i.:ie  moment  the  prefident  and  his  aftociates  aft'emble,  that  mo¬ 
ment  ad  aiftinction  ceaies  ;  and  their  rights  and  duties  are  con-- 
ftitutionady  the  fame.  In  fhort,  in  every  inftance  while  fitting 
as  a  court,  the  power  and  duty  of  the  prefident  and  afiociate 
jauges  are  placed  on  the  fame  conftitutional  footing  ;  and  in 
g‘i  cafes  where  they  a£t  individually,  thefe  powers  are  eo-exten- 
De,  dminguiftied  only  by  the  local  range  of  juriftlicHon.  They 


C  87  1 

have  exclufively  the  powers  of  juftices  of  the  peace  in  criminal 
matters,  &c.  &c. 

Here  then  is  no  diftinaion  made  in  the  conftitution  between 
the  powers  of  the  prefident  and  affociate  and  if  the  conft  ■ 
tionhecognizes  no  diftinaion,  the  legiilature  can  make  no  dif- 
t”aion  ;  "and  certainly  no  aft  of  the  judges  themfelves  canpof. 
fiely  oven-leap  the  conftitut.on  and  the  law,  to  create :  a id.  ft  met  , 
by  bartering,  or  furrendering  rights  which  they  «  rt^ 
public  benefit.  We  mull  not  be  milled  by  words  or  n ames 
prefident  does  not  mean  a  perfon  who  is  to  dired,  influence 
control  and  command  the  court  ;  but  m  this,  “J  JJ' 
bodies,  from  neceffity,  there  mull  beanoi  gan  o  ec 
Thus,  in  the  fupreme  court  there  is  a  chief  juft.ee  in  he i  * 
nate  a  fpeaker  ;  and  on  the  grand  jury  there  is  a  forem ,  , 

they  all  mean  the  fame  thing,  and  nothing  more.  The  p rei 
ing  perfon  is  defoliated  as  a  fort  of  certifying  officer,  to  decUre 
the  fenfe  of  the  majority  of  the  court,  the  fena  e,  o.  the  jury. 
It  may  happen,  and  often  does  happen,  tnat  tii  .  g 
obliged  to  declare  a  refult,  to  which  he  had  been  oppofed,  and 
of  the  propriety  of  which,  at  the  moment  of  announcing  it. 
may  not  be  convinced.  The  foreman  of  a  grand  jury  is  often 
obliged  to  fign  a  bill  he  voted  aga.nft ;  and  you,  Mr.  Speaker, 
have  had  to  fign  a  law,  which  in  its  progrefs  you  u 

cefsfully  combated.  So  a  prefident  of  a  court,  ucaethere 
are  three  or  more  judges,  who  concur  in  opinion  agamft  > 
may  have  to  deliver,  as  the  fenfe  of  the  court,  opinions  co 

trary  to  his  own. 

Nor  are  we  to  be  milled  on  account  of  a  diftinaion  made 
in  the  ad  of  affembly,  for  organizing  our  courts,  by  which  a 
profeflional  charader  is  required  to  be  placed  as  prehdent  o  a 
court  of  common  pleas.  The  prefident  does  not  by  this  dif- 
tindion  acquire  any  additional  power,  nor  is  he  railed  to  any 
greater  degree  of  eminence.  You  find  nothing  m  the :  con¬ 
ftitution  that  preferibes,  that  the  prefident  fhall  be  a  ega  c  a 
rader,  though  the  ad  of  affembly  enjoins  it ;  and  aithougli  u 
might  be  a  queftion,  whether  the  legiilature  had  the  power  un¬ 
der  the  conftitution  to  place  this  reftraint  on  the  appointments 
of  the  executive,  it  has  nothing  to  do  with  the  prdentdi - 
cuffion.  In  point  of  convenience,  however,  the  introduction 
of  a  law  charader  on  the  bench  might  be  well ;  lie  may  un- 
queftionably  be  ufeful ;  but  he  cannot  be  fuppofed  entitled  on 
this  account  to  abridge  the  rights,  or  to  prevent  a  perform¬ 
ance  of  the  duties  of  his  affociates,  as  declared  in  the  conltitu- 
tion.  He  no  doubt  will  have  an  influence  on  points  ol  law, 


[  88  3 

jf  the  minds  of  gentlemen,  who  have  not  made  the  law  their 

U<  ’-  ;  b“t  1  tru1]  no  oni;'  13  _  prepared  to  fay,  that  fuch  influ- 
nce  could  extend  to  authorize  the  prefident  to  deprive  his  af- 
lociate  of  their  equal  rights  and  authority.  That  he  is  there 
,.s  a  eg_  character,  arifes  from  the  accidental  courfe  of  his 
purlmt  of  a  proleffion  ;  but  that  circumftance  cannot  affeft' 
the  eonflitutional  equality  of  the  judges.  His  having  read 
-  .0  praftifed  law,  cannot  enlarge  his  rights  as  prefident,  nor 
oimmilh  thofe  of  his  aflbciates.  No  queftion  of  law  or  faft 
can  ar.fe  but  what  the  afibciate  may  entertain  and  exprefs  an 
opinion  on  as  well  as  the  prefident.  Nor  is  there  in  the  confti- 
tuuon  to  be  found  any  difcnmination  between  grand,  and  oetit 
janes,  or  between  civil  and  criminal  cafes,  or  to  the  powers 
and  duties  of  the  judges ;  but  in  every  cafe,  where  the  judi- 

cial  office  is  employed,  we  find  the  powers,  the  rights,  and  du- 
ties  the  lame.  ° 

This  conftitutional  enquiry  is  neceffary,  becaufe,  I  think, 
after  eftabl.lh.ng  that  the  conftitution  gives  equal  power,  and 
equal  rights,  and  mipofes  equal  duties,  on  the  prefident  and  af- 
fociate  judges,  we  (hall  require  fomething  more  than  an  out¬ 
door  agreement  of  the  judges,  to  deftroy  this  conftitutional 
equably,  not  only  as  to  the  parties  to  the  agreement,  but  as 
to  their  fuccefTors  for  ever. 

On  this  occafion,  1  will  quote  an  authority,  which  the  de 
iendant  will  accept  as  entitled  to  confideration.  It  is  from  a 
volume  of  his  own  reports,  to  which  are  annexed  a  number  of 
charges,  many  of  which  do  him  honor  ;  and  one  of  which  he  de 
inhered  m  September  feflion,  1791,  foon  after  the  eftablifhment 
of  the  judiciary,  under  the  prefent  conftitution,  viz. 

“  18  a  Science,  the  right  underftanding  of  which  requires 

general  knowledge,  much  ftudy,  and  clofe  reflection..  Without 
thefe,  it  never  can  be  known.  And,  to  know  it  intimately, 
will  require  the  labors  of  half  a  life.  } 

“  A  C°T  of  W>  the  knowledge  of  law,  might,  had 

'  e  'f'j1  It  to  exilt,  have  appeared  to  us  an  abfurditv 

t°o  glaring,  to  have  place  in  a  free  country.  For  freedom  can- 
not  fun.ift  without  law.  And  law,  ignorantly,  partiaUv,  or. 

,k“  "7  “”r  ““ 

enliph ten prl  ah  *  ,•  r  •  t-  3  ^euic  ait  improved  and 

en-  g-  toned  admimftration  of  juft, cc,  had  an  evident  influence ; 


C  *9  3 


and  thus,  like  a  body  impelled  by  two  forces,  moving  In  dif- 
f-r-nt  directions,  it  has  taken  the  courfe  of  neithei,  but  a  m. 
le  one  -  nigh  to  each,  as  the  force  of  the  other  would  per, 

jnit. 

a  To  have  compofed  thefe  courts  entirely  of  men,  lawyers  by 
profeiTion,  would,  unlefs  fuch  judges  had  been  :ew,  have  ap¬ 
peared  a  meafure  too  expenfive.  If  they  had  been  few,  tney 
might  have  poffeffed  lefs  confidence,  or  been  liable  to  more  ca- 
iualties.  At  all  events,  this  arrangement  might  have  been  con- 
fidered  as  too  great  a  deviation  from  the  former  fyftein:  and, 
therefore,  to  conftitute  even  a  profefiional  judge  for  each  coun¬ 
ty,  was  not  attempted. 

«  To  leave  the  courts  unaltered,  was  liable  to  fo  many  objec¬ 
tions,  that  no  doubt  could  exift,  that  fome  improvement  was  ne- 


ceiTary. 

“  It  was  eafily  agreed,  that  one  man,  by  profefiion  a  lawyer, 
fhould  be  allotted  to  a  circuit  of  feveral  counties,  as  prefident  ot 
the  courts  in  all.  And  it  then  became  a  quefinon,  whether  one 
man,  not  a  profefiional  lawyer,  in  each  county  of  the  circuit, 
fhould  be  affociated  with  him,  and  all  be  judges  in  every  coun¬ 
tv  therein,  or  whether  three  or  four  fuch  men  fhould  be  allo¬ 
cated  with  him  in  each  county,  as  judges  for  that  county  only. 
The  firft  method  would  have  been  the  bell.  The  laft  was  con¬ 
ceived  to  be  the  mod  acceptable  ;  and  was  accordingly  adopted. 

«  Thefe  judges,  befides  integrity  of  heart,,  and  decency  of 
demeanor,  are  prefumed  to  poffefs  firmnefs  without  obftinacy, 
modefty  without  flexibility,  difcretion  without  timidity,  know- 
ledn-e  without  conceit,  and  judgment  without  preemption. 
Thefe  qualities,  blended  with  that  fkill  of  the  law,  which  the 
prefident  is  fuppofed  to  have  acquired,  from  ftudy  and  pra&ice 
in  his  profefiion  ;  and  which  the  aflpeiate  judges  are  fuppofed  to 
acquire,  by  their  future  attention  and  experience,  may,  it  is 
prefumed,  conftitute  a  tribunal,  from  vvhich  the  benefits  of  a 
court  of  juftice  may  be  expedled,  and  in  which  the  powers,  ot 
a  county  court  may  be  lodged. 

“  Thefe  powers  are  important.  Under  the  former  conftitu- 
tion,  fome  juftices  of  the  court  of  quarter  feflions  and  orphans’ 
court  were  not  juftices  of  the  court  of  common  pleas  ;  and 
fome  juftices  of  the  court  of  common  pleas  were  not  juftices 
of  the  court  of  quarter  fefiions  and  orphans’  court.  Now  the 
prefident,  and  all  the  judges  of  the  court  of  common  pleas 
are,  under  that  name,  and  by  virtue  of  that  appointment,  a  o 
judges  of  the  court  of  quarter  fefiions  and  orphans’  court ;  and. 


[  9«  ]  - 

■together  with  the  rcgifter,  judges  of  the  regifter’s  court,  within 
tlieir  refpeaive  counties.”  Add.  Rep.  Charges,  p.  2,  3. 

Again  the  learned  gentleman  fays _ 

“  Each  ftate>  whether  of  nature  or  civil  foeietv  has  if.  ar| 
vantages  and  ^advantages.  In  a  ftate  of  civil  Wty,  courts 
f  Jl,f*lce  are  “eceflary.  Being  not  only  neceflarv,  but  import 

th  s  de?7ee°UoSf  oet0f  A-made  38  Per?a  as  P°‘™e  5 and  to  attam 
tins  degree  of  perfeaion,  and  enfure  a  regular  and  proper  ex- 

crc.fe  of  their  powers,  expence  is  neceffary?  P  P 

“  The  county  courts  having  immediate  and  important  in. 
u.nce  upon  our  lntereils,  it  was  thought,  that  every  obli¬ 
gation  and  inducement  ought  to  be  laid  upon  the  judges,  to 

bv  thelrnrefy’tan  7  d°- !t  WeU-  And  this>  !t  wJ  prefumed 

ihem  to  a  f  I  COnf  nUt'0n’  W°uId  be  cffeaed>  b7  reducing 

durL  o-ond  b  -3  a  n„Umber’  giv!nS  them  commiffiont 
nS  ©00u  behavior,  and  allowing  them  falanes. 

V  judg£s  now  allotted  to  every  court  are  not  mor<= 

t7etaPdhifi7sareThPP°fed  Tf30'’  t0  enAlre  confidence  in 
d  iv  A1  °JS'  lhey  are  lo  &w,  that  they  can  be  eafiiv 

hftmaiy  and  generally  known,  and  that  tlJabfence  of  a  v 
one  will  be  mflantly  obferved.  Each  of  them  will  have  re  f 
on  to  fuppofe,  that  his  prefence  may  be  neceffary  at  court- 
and,  being  there,  will  be  afhamed  to  be  abfent  from  his  place’ 
Tnus  every  one  will  feel  himfelf  a  necei&ry  menl  of  the 
court,  and  be  prompted  to  do  his  duty. 

“  But  every  one  will  be  prompted  alfo  to  do  it  well.  For 
cung  no  other  end  of  their  cbmmiflions,  but  the  end  of  their 

v7ce  SforndtheeibS  7  TT.  b°Und  *°  beflow  their  li“c  and  fer- 
vice,  for  the  benefit  of  the  public,  without  a  compenfation  - 

d  o^tole  1CS’  t0  C°mfenfete  for  their  time  "and  iZ’t 
and  ma‘s7ul}'  Hornes  a  calling  or 

ties  is  evoefled  ’  •  T  P3rtlcular  attentlon  to  its  du„ 

= ss?  *  dsxs.  jtr 

fPiToTgt  "to'lencfa  ffmfng ^ 
me  opinion  of  the  prefident,  on  abftraa  points  of  law  t 


C  9‘  3 


But  i't  does  not  infmuate,  that  on  queftions  of  politics  the 
like  deference  is  due  ;  and,  in  fadl,  a  man  of  fenfe,  experience, 
and  general  information,  will  often  be  better  qualified  to  dif- 
cufs  and  decide  a  political  queftian,  than  one  who  has  con- 
fined  himfelf  to  mere  legal  fludy. 

If,  however,  the  dodlrine,  now  contended  for,  is  correft, 
let  us  afk,  why  the  conflitution  contemplates  the  appointment 
of  three  or  four  afibciate  judges  in  each  county  ?  Why  are  we 
encumbered  with  fo  fruitlefs  an  expence  ?  Or,  why  are  the  af- 
fociates  rendered  independent  of  the  executive,  in  theory,  to 
become  dependent,  in  practice,  on  an  inferior  magiilrate  ? 
If  the  prefident  only  is  to  fpeak  on  all  fubjedts  to  a  grand 
jury,  where  is  the  boundary  to  prevent  his  extending  the  ufurpa- 
tion  to  cafes  before  a  petit  jury  ;  or,  in  fhort,  to  every  objcdl 
of  judicial  enquiry  ?  The  nature  of  the  judicial  character,  does 
flot  warrant  the  pretenfion,  any  more  than  the  pofitive  provi- 
fionsof  the  conflitution.  The  firfl  idea  of  the  judicial  characdter' 
which  prefents  itfelf,  is,  that  a  judge  only  exifls  in  the  exer- 
cife  of  his  own  judgment.  A  judge  cannot  a6l  by  deputy, 
for  he  cannot  delegate  the  powers  of  his  judgment  to  another  * 
He  cannot,  for  the  purpofes  of  judgment,  receive  informa¬ 
tion  through  the  eyes,  ears,  or  underftanding,  of  another. 
The  very  nature  of  the  judicial  charadter,  I  repeat,  requires 
that  he  fhould  fee,  hear,  and  underhand  for  himfelf.  lie  vi¬ 
olates  his  trull,  if  he  fubflitutes  the  judgment  of  another  for 
iris  own  ;  or  even  if,  by  his  filcnce,  he  permits  a  jury  to  in¬ 
fer,  that  he  is  fatisfied  with  the  opinion  of  another,  at  whofe 
opinion  he  revolts  ;  nay,  he  is  more  bound  to  give  his  opi¬ 
nion  and  to  affign  the  reafons  lor  it,  if  he  is  diflatisfied,  or 
even  doubts,  than  when  he  concurs  in  the  fentiments  of  a  col¬ 
league.  What  fort  of  a  judge  would  he  be  that  fhould  fuller 
rt  to  be  underflood,  that  he  agreed  in  a  charge  from  which 
in  fadl  he  diffented  ?  No  Man  will  aflert,  that  fuch  condudl 
would  furnifh  the  mind  with  an  idea  of  the  judicial  character, 
different  circumflances,  faid  the  defendant,  will  ftrike  the 
minds  of  different  perfons,  in  a  different  manner.  True,  it  is 
fo  in  the  moral,  and  in  the  phyfical  world  ;  and,  emphatically, 
it  is  true,  in  the  fcience  of  the  law,  which  is  a  department 
of  the  moral  world.  There  is  fcarceiy  a  topic  of  legal  invef- 
tigation,  which  does  not  produce  contrariety  of  fentiment,  and 
fometimes  of  decifion.  It  is  not  a  difference  among:  lawyers 
merely  ;  but  you  icarceiy  find  an  argument  at  any  bar,  that 
does  not  occalion  a  diverfity  of  opinion  on  the  bench.  But 
this  very  view  of  the  fubjedt,  leads  to  the  conclulion,  that 
every  one  ought  to  aflign  his  reafons,  whether  he  agrees  or 


t  92  3 

diffents ;  and  we  ought  not  to  fay  to  an  afiociate  judge,  that 
you  may  think,  but  you  (hall  not  utter  your  thoughts  :  You 
may  form  an  opinion,  but  you  {hall  not  deliver  it  :  You  may 
fit  as  a  judge,  but  you  (hall  never  difplav  your  own  judgment, 
unlefs  it  coincides  with  the  judgment  of  the  majority  of  the 
bench.  Alas  !  would  this  be  confident  with  the  judicial  cha¬ 
racter  !  Further:  We  know  from  our  own  times,  as  well  as 
from  the  hiftory  of  antient  days,  that  a  majority  of  the  judg¬ 
es,  in  courts  of  law,,  have  been  capable  of  delivering  illegal* 
unconftitutional*  and  even  criminal  opinions.  On  fuch  occa- 
fions  were  the  minority  bound  to  fiience  :  Whatever  may  have 
been  the  rule  of  the  day,  in  the  cafe  of  the  {hip-money,  and 
the  cafe  of  the  feven  bifhops,  mankind  have  finee  confecrated 
to  everlafting  fame,  the  names  of  thofe  who  honorably  fpurned 
the  flavifh  do&rine.  Let  the  doctrine  prevail,  and  1  fee 
not  why  a  puppet,  or  a  China  mandarin*  would  not  form  as 
good  an  affociate  judge  for  the  honorable  prefident  as  a  Coke  or 
a  Mansfield.  A  judge  who  may  agree  in  fiience,  but  cannot 
diiTent  in  fpeech  ;  who  may  ruminate,  but  dare  not  divulge  his 
fentiments  ;  who  {hall  be  confidered,  in  law,  as  a  party  to  the 
judgment  of  the  court,  and  yet  cannot,  in  fadt,  declare  that  he 
thinks  the  opinion  of  the  court,  either  erroneous  or  criminal. 
Surely,  a  prefident  and  men  of  the  ttraw,  would  be  as  compe¬ 
tent  to  the  bufinefs  of  our  tribunals,  as  a  court  conftituted  of 
fuch  materials.  But  fuch  are  not  the  materials  of  which  our 
courts  are,  or  ought  to  be,  compofed.  The  powers  created 
by  the  conftitution,  the  rights  inherent  in  the  judicial  character, 
point  at  equality  and  independence  among  the  judges.  In 
every  court,  whether  fuperior  or  inferior,  the  maxim  prevails, 
“  Inter  pares  non  ejl  potejlas”  Among  judges  feated  by  the 
law  on  the  fame  bench,  there  is  no  power  of  coercion,  or  con¬ 
trol.  No  judge  can  prefcribe  to  another  a  limitation  in  the 
cxercife  of  his  judicial  authority  ;  and  though  the  opinion  of 
a  majority  of  the  court  muft  prevail,  there  does  not  exiil  a 
power  in  the  majority,  to  prevent  the  minority  from  forming, 
and  exprefiing  an  opinion.  From  every  fource  of  judicial  au¬ 
thority,  from  the  conftitution,  from  the  a<fts  of  aftembly,  from 
the  maxims  of  the  common  law,  and  from  daily  praftice  and 
experience,  the  fame,  undeviating  refult  is  deduced.  A  bro¬ 
ther  juftice  cannot  be  bound  even  to  his  good  behavior,  for 
ufing  fuch  exprefiions  in  court,  as  would  authorife  the  com¬ 
mitment  of  a  private  perfon.  But  let  me  appeal,  likewife,  to 
any  member  of  the  fenate,  at  all  acquainted  with  the  proceed¬ 
ings  of  courts,  whether  his  fenfe  of  decorum  would  not  be 
wounded,  if  feeing  a  divifion  of  three  to  two  judges,  upon  a 


I 


[  93  3 

a  cafe  before  them,  he  fhould  hear  the  majority  declare,  that 
the  minority  might  think,  but  fhould  not  fpeak  ?  And  what 
would  be  his  indignation  if  this  threat  was  added,  “  If  you,  of 
the  minority,  are  not  lilent,  we  of  the  majority  will  fend  you  to 
jail.”  But  is  this  the  extent  to  which  the  mifchief  leads  ?  May 
not  the  majority  of  every  public  body  a£l  upon  the  fame  princi¬ 
ple,  with  equal  right  ?  And  fha.ll  we  not,  in  the  end,  encourage 
a  ufurpation,  by  which  all  the  independence  of  individuals,  of  mi¬ 
norities  in  public  affemblies,  and  even  of  the  departments  of  the 
government,  may  be  undermined  and  deflroyed  ?  Something 
ftronger  than  any  thing  that  has  been  urged  in  favor  of  the 
principle,  muff  be  brought  to  its  fupport,  before  it  will  receive 
the  fanCtion  of  the  fenate.  Carry  the  effeCt  one  ftep  further* 
and  if  the  judges  divide,  two  againft  two,  mere  manual  ftrength* 
or  brutal  force,  muft  decide  the  judicial  conflict. 

On  the  queftion  of  the  equal  power  of  the  judges,  as  far  as 
authority,  independent  of  the  conftitution  may  be  adduced,  I 
lefer  to  Chriftian’s  notes  on  Blackftone’s  Commentaries,  to 
Burn.  248.  12  Coke,  118.* 

I  have  hitherto  confidered  the  bufinefs  of  a  judge,  in  a  ge¬ 
neral  point  of  view  ;  and  1  fuppofe  there  can  be  no  valid  dif- 
tindtion,  between  an  addrefs  to  a  grand  jury,  and  any  other 
exercife  of  the  judicial  fundtions.  Differences,  too,  have  aiifen 
among  judges  of  the  fame  bench  ;  but  they  were  differences  of 
opinion  on  the  caufe  before  the  court,  not  differences  of  opi¬ 
nion,  on  the  equal  right  of  judgment.  Lord  Mansfield,  who 
enlightened  the  jurifprudence  of  England  far  beyond  any 
other  law  luminary  of  the  lafl  century,  had  long  been  accuf- 
tomed  to  fway  the  decifions  of  the  coilrt,  in  which  he  prefided  ; 
and,  Anally,  acquired  fuch  influence  over  the  other  judges,  that 
they  feldom  ferutinized,  or  contefled,  his  opinions.  Mr.  juftice 
Yeates,  an  eminent  common  law  lawyer,  differed  from  lord 
Mansfield  and  the  other  judges  on  two  important  points  ;  and 
eventually  Mr.  Yeates’s  opinion  was  recognized  to  be  law. 
What  would  have  been  the  confequence,  if  the  affociate  judge 
had  not  exercifed  his  right  ?  An  acquiefcence  in  an  erroneous 
and  illegal  judgment.  Another  confequence  emfued,  it  is  true, 
but  lefs  mifehievous,  and  Mansfield  was  relieved  from  the  irri¬ 
tation  of  contradiction,  by  exchanging  judge  Yeates  for  Mr. 
juftice  Blackftone,  who  was  a  member  of  the  court  of  com¬ 
mon  pleas.  Again  :  When  lord  Kenyon  undertook  to  difturb 
the  foundations  of  feveral  of  lord  Mansfield’s  decifions,  Mr. 
juftice  Boiler  defended  them  boldly  and  ably  from  the  attack. 

*  Vide  appendix ,  B%  C,D ♦ 

N 


I  94 


“1 

J 


/ 


His  right  to  do  fo,  never  was  contefted  ;  but  the  inconveni¬ 
ence  of  the  confha,  in  the  adminiftration  of  juftice,  was  fo 
obvious,  that  Mr.  juftice  Buller,  alfo,  was  tranflated  to  the 
bench  of  the  common  pleas.  Hence,  then,  we  fee,  that  among 
the  judges  in  that  country,  from  which  we  derive  our  fchemes 
.  judicial  policy,  there  ^xifts  a  perfeft  equality  ;  and  not  only 
is  it  the  right  of  a  judge  to  form  opinions  on  the  fubje&s  be¬ 
fore  the  court  ;  but  it  is  an  indilputable  duty  to  exercife 
that  right,  and  to  deliver  the  reafons  upon  which  their  opini¬ 
ons  are  founded,  as  well  in  cafes  of  diffent  as  of  afTent. 

In  the  commentary  on  Fitzharris’s  cafe  (4  State  Trials,  p 
458)"  by  a  very  eminent  lawyer,  it  is  faid,  that  it  is  the  duty 
of  every  judge  to  give  the  reafon  of  his  opinion,  where  he 
dinents,  and  to  ftate  the  caufes  of  his  difficulty,  where  he 
doubts.  Nay,  a  writer  of  great  celebrity,  on  general  princi¬ 
ples  of  law,  afterts,  that  it  is  inconfiftent  with  the  oath  of  a 
judgre  to  be  a  mere  cypher  on  the  bench.  (Eunomus,  2  vol.  3 
Dialogue,  229.  280.)+  And,  yet,  can  a  judge  be  any  thing 
more  than  a  cypher,  who  is  doomed  to  ruminate  in  filence  ; 
who  muft  not  even  appear  to  controvert  the  opinions  of  his 
brethren,  nor  dare,  at  the  peril  of  perfonal  indignity  and  dan¬ 
ger,  to  indulge  the  expreffion  of  his  own.  It  is  true,  that  the 
defendant  alledges,  and  Mr.  M‘Dowell  teftifies,  that  it  was  un- 
derftoocb  that  an  affociate  judge  might  deliver  his  fentiments  to 
a  grand  jury,  provided  they  were  previoufly  fubmitted  to  the 
fcrutmy  of  the  court,  and  the  utterance  of  them  received  the 
ianction  of  the  majority  :  In  other  words,  you  ffiall  enjoy  the 
privilege  to  fupply  any  thing  that  has  been  omitted  in  the  ad- 
drefs  of  the  majority  ;  but  we  will  firft  decide,  whether  the 
upplemental  matter  ffiall  be  deemed  an  omiffion  :  or  you  may 
proceed  to  correct  an  error,  but  firft  we  are  to  judge,  whe¬ 
ther  an  error  has  been  committed  by  ourfelves  :  Nay,  we  will 
permit  you  to  deliver  your  fentiments  at  large,  if  they  relate 
to  the  immediate  duties  of  a  grand  jury;  but  whether  they 
have  fuch  relation  it  ffiall  be  our  preliminary  province  to  difcufs 
and  decide  .  Is  not  this  a  mere  judicial  juggle,  that,  paltring 
m  a  double  fen fe,  which  Keeps  the  word  of  promife  to  the  ear, 
and  breaxs  it  to  the  hope  ?  To  tell  a  magiftrate,  gravely,  that 
he  ffiall  have  perfed  liberty  to  do  all  that  a  judge  has  a  right 
to  do  ;  and  yet  to  ref; ram  him  from  the  declaration  of  his  opi¬ 
nion,  where  it  differs  from  the  opinion  of  the  majority,  is 
icarcely  left  ridiculous  than  the  government  of  Trinculo,  who 
agreed  that  thrs  brother  tar  ffiould  be  their  vice-rov,  but  in- 
ldfed  that  he  would  be  vice-roy  over  him.  But  neither  the 

*  Vlde  appendix,  A.  f  Vide  appendix,  F. 


C  95  ] 

eonftitution,  the  laws,  nor  the  pra&ice  of  the  courts,  can  be 
{hewn  in  any  way  to  juftify  pofitions  fo  contrary  to  the  dic¬ 
tates  of  common  fenfe,  and  the  rights  of  an  independent  ma- 
giftracy.  The  office,  duty,  and  character  of  a  judge,  furniffi 
no  ground  to  fupport  the  doctrine  ;  and,  I  truft,  it  is  fuffi- 
ciently  manifeft,  that  there  is  no  diftin£tion  between  the  rights 
of  the  prefident  and  the  affociate  judges  conftituting  the  fame 
court  ;  that  the  difference  of  name  creates  no  difference  of  au¬ 
thority  ;  and  that  if  the  preiident  could  reftrain  an  affociate 
judge  in  one  cafe,  he  might,  with  equal  propriety,  extend  his 
power  to  reftrain  him  to  every  other  poflible  cafe. 

Enquiring,  more  particularly,  however,  whether  there  is  any 
difference,  in  the  authority  of  the  feveral  judges  conftituting 
the  fame  court,  to  addrefs  grand  juries,  (their  other  official 
powers  being  clearly  equal )  we  are  to  look  for  the  origin  of 
charges  to  the  Engliffi  courts.  I  have  not  the  books  here  to 
refer  to  ;  but  if  my  recollection  is  correCt,  the  practice  ori¬ 
ginated  with  the  juftices  in  Eyre  and  Affize,  who  in  the  courfe 
of  their  judicial  circuits  and  vifitations,  collected  a  number  of 
perfons  competent  to  enquire  into  the  ftate  of  the  country, 
for  the  purpofe  of  difcovering  the  offences,  that  had  been  com¬ 
mitted,  and  bringing  the  offenders  to  trial  and  punifhment. 
The  fele&ed  inqueft  ufually  affembled  at  the  chambers  of  the 
judges,  where  the  principal  judge  delivered  to  them  an  ab- 
ftracf  of  the  crimes  and  offences  of  which  they  were  to  en¬ 
quire,  comprifing  nothing  more  than  a  fiiort  definition  of  the 
feveral  offences,  and  the  punifhments  annexed  to  the  perpetra¬ 
tion  of  them.  The  length  of  the  charge  naturally  encreafed* 
with  the  encreafe  of  offences,  and  the  extenfton  of  the  penal 
code  to  new  objects  ;  but  ft  ill  it  long  preferved  its  original 
character  of  a  mere  abftradf  of  crimes  and  punifhments  ;  and, 
confequently,  no  opportunity  could  occur,  on  this  part  of  a 
judge’s  duty,  for  a  diverfity  of  fentiment.  From  the  ufeful 
limplicity  of  this  practice,  however,  it  has  been  the  paffion  of 
modern  judges  greatly  to  depart ;  but  in  no  country  has  the 
departure  been  more  bold  or  pernicious,  than  in  our  own. 
Even  in  the  judicial  hiftory  of  England,  where  the  fpirit  of 
party  has  fometimes  raged  with  the  moft  dreadful  confequences, 
you  will  find  it  difficult  to  trace  any  inftance  to  countenance 
the  political  declamations,  the  party  inve&ives,  which  have,  of 
late,  become  a  fort  of  prelude  to  the  commencement  of  every 
feffion  of  our  courts  of  juftice.  The  moment,  the  original, 
ground  was  left,  from  that  moment  a  new  feries  of  confe¬ 
quences  enfued.  We  entered  our  courts,  not  as  to  a  feene  of 
adminiftrative  law,  but  to  a  feene  of  political  fpeculation  ;  in 


[  9«  ] 

which  no  precife  objeft  was  presented  to  the  mind  ;  but  m- 
itead  01  a  definition  of  crimes  and  puniihments,  the  attention 
was  engaged  by  theoretical  declamations,  or  the  feelings  were 
exalperated  by  the  forenfic  denunciations  ;  and  every  mind  drew 
diderent  conclufions  from  the  difplay,  having  different  preju- 
dices  and  opinions,  to  indulge.  As  foon,  then,  as  difeuffions, 
Oreign  fiom  the  objects  of  the  penal  code  were  introduced,  a 
correfpondmg  order  of  things  arofe,  in  tranfafting  the  bu- 
hneis  of  the  judges.  In  every  inftance  of  a  charge  to  a  grand 
juiy  relative  to  their  duties,  it  is  admitted,  that  there  is  a  con¬ 
current  right  in  the  affociate  judge  to  addrefs  them  ;  but  it 
was  laid  by  Mr.  M‘DoweH,  that  as  to  all  extra  matter ,  it  was 
left  exclufively  to  the  prefident,  under  a  chamber  agreement 
of  three  of  the  affociate  judges,  and  the  prefident,  to  fav  and 
do  as  he  pleafed  :  It  was  determined,  that  he  fhould  be  lord 
paramount  ;  that  he  fhould  have  the  monopoly  of  declaring 
aU  extra  matter  to  the  public,  without  the  control,  or  confer*! 
of  any  other  of  his  brethren  ;  nay,  in  dired  oppofition  to 
en  notions  of  law,  jufbee,  policy,  and  decorum.  Surely 
we  ought  to  have  fome  explanation  of  what  is  meant  by  this 
^  extra  matter!”  for,  as  it  ftands,  what.does  it  not  embrace  r 
VV  hither  does  it  lead  ?  and  who  can  limit  its  operation  ? 

r  (Mr*  ^‘Dowell,  who  was  fitting  in  the  houfe,  rofe  up  and 
laid,  “  Mr.  Dallas  has  miftaken  my  evidence  altogether,  “  Ex¬ 
tra  matter that  is  not  what  I  faid.)  ° 

Mr.  Dallas.  “  Extra  matter”  were  the  words.  Extra  mat¬ 
ter  But  though  the  definition  has  not  been  given  bv'the  de- 
jendant,  or  his  witnefs,  tliere  are  materials  before  is,  from 
which  to  form  a  tolerable  idea  of  the  meaning  of  thofe  who 
u  ed  the  term.  It  is,  then,  1  prefume,  matter  delivered  to  a 
juiy,  with  which  they  have  nothing  to  do.  It  is  matter  to 
diffuade  them  from  the  impartial  difeharge  of  their  duty,  on 
the  fcore  of  party  ammofity.  It  is  matter  to  excite  in 'their 
leaits,  a  fpint  ot  perfection  againft  their  neighbors,  who  dif- 
fer  with  them  in  political  or  religious  opinions':  It  is  “  extra 
matter”  to  inculcate  dodrines  to  the  people,  from  the  bench, 
in  favor  of  the  party,  to  which  the  prefiding  judge  has  at- 
tached  himfelf.  We  will  put  a  cafe  (authorifed  by°  the  teili- 
ny)  of  a  political  difcuffion,  in  which  is  brought  into  view 
that  farrago  of  abfurdity,  fallhood,  and  wickednefs,  that  glares 
n  the  pages  of  Barreul  and  Robertfon  ;  or  which  is  pour- 
trayed  in  the  Bloody  Buoy  with  all  the  filth  of  Porcupine; 
and  we  wil!  fuppofe  the  prefiding  judge  to  declare,  that  the 
C™  V"11  whlcb  spears  in  thofe  works  to  have  deftroved  E«- 


[  97  ] 


rope,  has  extended  its  baleful  influence  to  this  country,  and  al¬ 
ready  corrupted  and  diieafed  the  very  heart  of  the  body  po¬ 
litic  :  If  in  proof  of  fuch  aflertions  he  would  refer  to  the  le- 
giflative  proceedings  of  our  filler  ftates,  Virginia  and  Ken¬ 
tucky,  and  point  emphatically  to  the  refult  of  our  own  elec¬ 
tions  ;  and  it  he  Ihould  lead  to  the  concluiion,  that  every  man, 
participating  in  thofe  reprobated  acls,  was  an  enemy  to  reli- 
gion,  good  order,  and  civil  government  ;  an  objedt  £•;  for  gene¬ 
ral  execration,  and  meriting  to  be  banifhed  from  the  focial  world. 
i  afk,  whethei  any  judge,  fitting  on  the  bench,  hearing  this 
wild,  irrational,  unfounded,  and  dangeious,  invedlive,  ought 
to  be  expected  to  pafs  it  over  in  filence  ;  and,  by  that  very 
iilence,  to  expofe  hiinfelf  to  the  fufpicion  of  approving  and 
alien  ting  ?  Grant  this,  and  the  effedt  would  be  dreadful  !  A 
prefident  of  a  court  of  common  pleas,  having  the  excluflve 
right  to  detail  all  “  extra  matter”  according  to  the  didiates  of 
his  o\\  n  tafle  and  paiiions,  would  foon  pafs  from  sreneral  decla¬ 
mation,  to  perfonal  denunciation  ;  configning  his  fellow-citi¬ 
zens,  one  after  another,  to  popular  hatred  and  fury,  as  the 
partifans  of  a  fa&ion,  jacobins  and  illuminati  ;  or  as?members 
Oi  tlic  Middle  Creek  Secret  A.iiociation,  till  all  fecur.’tv  of 
the  laws,  in  relation  to  perfons,  reputation  and  fortunes,  would 
be  annihilated,  ir,  at  leait,  tnis  extenfive  mifchief  was  not 
produced,  followed  by  civil  commotion  and  war,  it  would  be 
owing  more,  to  the  mild  temperament,  the  happy  manners  of 
our  citizens,  than  to  the  conciliatory  difpofition  of  the  judge. 
But,  after  confidering  the  effedl  of  fuch  an  addrefs,  delivered 
with  the  approbation,  and  under  the  fandtion,  of  a  majority  of 
the  court,  let  us  contemplate  the  kill  more  extraordinary  fea¬ 
tures  of  the  prelent  cafe.  It  is  to  be  remembered,  that  the 
court  of  quarter  feflions  was  compofed  of  Mr.  Addifon  and 
Mr.  Lucas  only  ;  and  could  there,  on  this  occafion,  be  given 
an  opinion  of  the  court ,  upon  any  point,  about  which  the 
judges  prtfent  disagreed  ?  Certainly  no  judicial  ad  could  be 
performed  without  the  confent  of  both  judges.  Was  the 
charge  delivered  by  Mr.  Addifon  fandioned  by  the  concur¬ 
rence  of  Mr.  Lucas  r*  No,  it  never  had  been  communicated  to 
lnm,  before  it  was  delivered  ;  and,  after  it  was  delivered,  he 
di  ftp  proved  of  it.^  Ilad  not  Mr.  Lucas  a  right  to  exprefs  his 
opinion,  when  the  firft  communication  was  made  to  him  > 
He  is  not  chargeable  with  negligence  ;  for,  he  offered  to  give 
his  opinion  of  the  addrefs,  the  lirft  moment  that  he  heard  it, 
and  if  he  did  not  approve,  it  was  his  duty  to  oppofe.  Say, 
that  he  agreed  in  the  charge,  fo  far  as  it  went,  but  wifhed 

to  add  to  it  :  Could  this  have  been  denied  to  him  ?  and  miVht 

v 


[  9«  1 


he  not  as  well  proceed  to  correft,  as  to  add  ?  Still  let  it  be 
confidered,  whether  there  is  any  reafonable  diftin&ion  between 
the  cafe  of  an  addrefs  to  the  grand  jury,  and  any  other  ju¬ 
dicial  aft,  not  only  in  relation  to  the  rights  of  the  individual 
judges,  but  as  to  the  opinion  of  the  court,  in  its  collective 
character.  The  reafon  applies  with  as  much  force  to  ad- 
drelfes  to  grand  juries,  as  to  any  other  occafion,  perhaps  with 
more,  when  you  confiaer  the  extenfive  enquiries  it  is  their  pro¬ 
vince  to  make  ;  and  from  time  immemorial  to  the  prefent  day, 
the  charge  has  been  confidered  the  charge  of  the  court,  net 
of  one  of  the  judges.  The  grand  juries  are  as  much  entitled 
to  heariht  opinions  or  inftruftions  of  an  affociate  judge,  as  the 
prefident  is  entitled  to  fpeah  his  own  opinions  ;  and  what  out¬ 
door  agreement,  what  monopoly  of  “  extra  matter,”  can  en¬ 
title  one  judge  of  a  court  to  deprive  the  grand  jury  of  this 
effential  right  ?  Will  it  be  permitted  to  the  defendant  to  fay, 
firft,  to  Mr.  Lucas,  “you  fhall  fpeak  only  what  I  pleafe,  and 
when  I  pleafe  ;”  and  then  to  the  grand  jury,  “  you  fhall  hear 
what  I  pleafe,  but  you  fhall  hear  nothing  more :  If  I  am 
wrong,  no  one  fliall  fet  me  right  ;  and  if  1  attempt  to  miflead 
you,  no  perfon  fhall  be  at  liberty  to  deteft  me,  or  to  warn 
you.”  But,  I  am  confident,  that  the  fenate  are  prepared  to 
affirm  the  right  and  the  duty  of  an  affociate  judge,  to  give  his 
opinion  ;  and  no  judge  can  furrender  his  official  rights  ;  for 
they  are  not  his  rights,  in  legal  contemplation,  but  the  rights 
of  the  public  :  And  if  Mr.  Lucas  had  confented  to  enter  into 
the  views  of  the  other  judges,  in  granting  to  the  prefident  the 
exclufive  right  of  delivering  “  extra  matter,”  without  conti  a- 
diftion,  revifion,  or  control,  he,  alfo,  would  have  been  guilty, 
(as  the  other  affociate  judges  have  been,  by  making  fuch  fur- 
render)  of  a  high  mifdemeanor  ;  for,  I  repeat,  thefe  rights 
were  not  given  to  him  for  his  ovVn  advantage,  to  be  the  fub- 
jeft  of  barter,  or  of  grant,  but  to  be  exercifed  by  him,  upon 
every  occafion,  for  the  public  benefit. 

Permit  me  now  to  proceed,  to  fhew  that  in  depriving  Mr. 
Lucas  of  the  right,  which  he  claimed,  Mr.  Addifon  has  been 
guilty  of  a  mifdemeanor  in  office  ;  and  with  that  view  more 
particularly  to  analyfe  the  fa£ts.  The  defendant  may  be  af- 
fured,  that  neither  the  counfel  on  the  part  of  the  managers, 
nor  the  managers  thtmfelves,  have  any  difpofition  to  cavil 
about  trifles,  or  diflort  the  teftimony.  So  far  from  fuch  a 
difpofition,  that  we  abflam  from  any  endeavor  (which  might, 
however,  we  think,  be  fuceefsful)  to  reconcile  the  trifling  dif¬ 
ference,  to  which  judge  Addifon  has  alluded  :  fuch  as,  whe- 


C  99  1 

thcr  Mr.  Lucas  was  flandino-  or  fittincr  n-kc  i 

add  refs  the  grand  jury-?  or  whether  Mr  AddT  VTf'?  :° 

bench,  or  was  upon  it,  when  he  faid  he  left  the 

der  itfelf  adjourned,  fo  far  as  refpeded  hilfdf  confi- 

that  there  is  nothing  to  impeach  the  credit ^of  the 

on  either  frde  ;  and  taking  the  great  n.nl  Ye  "eff?s 

may  fairly  be  afferted,  that  there'  never  were  'art-'ch  &<f‘ *’•  * 
peachment,  fo  completelv  and  *  e  a  tlC*es  °f  im- 

by  the  evidence,  as  on  the’prefent  occafion’.0'"^17  fupported 

Confider,  fir,  the  firft  arfiYle  t*  „ 

effort,  which  Mr.  Lucas  made  to  execweTh-’dlties  ‘fV 
miffion,  m  addreffing  a  petit  jury  unnn  tu  "  r  u-  n°l hls  com" 
trying,  kindled  the  palons  of '  ihe  prefidew  f']  ^ 

of  Coulter?v.  Moore,  £ Xn  for“S  X  Mr"  AddV^ 
charge  to  the  iurv  1Vir*  -^ddiion  s 

t-o  %  ,  .  ,  Lir)  contained  an  opinion  favoraMp  t-o 

d.a  for  high  or  exemplary  dama.re,  •  but  Mr  r  -r' 

■ng,  from  the  evidence,  fome  doubts’  „f  t  ,  C°,nCeiv- 

ter,  expreffed  an  opinion  favorabkto  a  verdhsTf^  *  T™0' 

f"S;  &  sst-  -  :c*“  f  3 

“■/“p™  ary*/**  ■* 

sast  $££ 

when  Mr.  Lucas  concluded  his  charsr-  ,,  '  exclaimed, 

contemptuous :  «  That  judge  and  fd?ffl  manner  warm  and 

bable  we  (hall  often  differ  -  Recot^Vn  °pln,°.n’and  »  P™- 
tlv„  „  .  ner*  Kecollect  the  fituation  of  the  nar 

4  anwtit  £„a<&„rwUnd  V  fUCh  Ci/cUmftanc->  "amount 

-ion,  that  the “a^ 

Jroof  of  the  affociates  often  Kei  S  •  1  fl°m  hlm’  wouId  be 

vh.°  enJ°yed  n°t  the  confidence* of*  the  141141"''  '’T  1 
Joints,  merited  not  the  confidence  of  u  ’5  leSal 

added  the  prelident )  that  has  Lid  I  n  ?  “  What 

-t  it  has  nothing  to  do  with  the  left;  Yr  3,1  ^  trUE’ 

herefore,  you  atfnot  to  PZ  any  attlldo^lo  if^  I™  j  •  “d* 

lnguage  of  a  temperate,  a  wife  and  upright  judere 

•e  dogma  of  a  judicial  tvrarn- ?  T  g  u  Judge  .  Or  is  it 

M,  an  encroachment  up'oTthe  eauaSts'ln'  ^F-  ^ 
uch  is  not  theWuage  held  in  t»J?r  g  *  f  HS  affociate  ? 


L  ioo  J 


g.uac-e  of  the  defendant  alone  ;  calculated  to  detei  judge  Lucas 
from  executing  the  duties  of  his  office.  Surely,  it  was  not  ne- 
ceflfary  for  Mr.  Addilon  to  make  thefe  remarks  :  the  occafion 
did  not  call  for  them  ;  and  he  would  have  offered  argument,  in- 
flead  of  affertion  ;  but  that  he  meant  to  deftroy  the  future  in¬ 
fluence  of  Mr.  Lucas  on  the  bench,  and  to  proilrate  all  hisf 
powers,  by  an  early  denunciation.  Am  I  not  authorifed  in 
making  thefe  deductions  from  the  evidence  ?  His  words  and  ac¬ 
tions  betrayed  a  temper  of  determined  hoflihty,  declaring  as  it 
were,  to  his  aftoniffied  and  indignant  colleague — “  You  are 
Lated,  fir,  by  executive  authority  on  the  bench  ;  but  this  mall 
avail  you  little,  either  in  your  own  enjoyment  of  the  appoint¬ 
ive  t,  or  in  the  public  ufe  to  be  derived  from  it.  Already  i 
make  you  feel  my  pre-eminence  5  and,  at  every  call  for  your 
opinion,  I  will  dilgrace  the  prefent  efforts,  and  lepudrate  all 
tf  e  future.”  That  Mr.  Lucas  was  deprived,  by  a  cruel  ufur- 
pation,  of  the  public  confidence,  and  even  weakened  in  the 
full  confidence  which  he  might  repofe  in  himfelf :  the  due  courfe 
of  juitice  was  interrupted  ;  and  by  a  neceffary  confequence, 
the  conftitution  and  the  law  of  the  llate,  were  fo  far  fubverted. 


But,  whatever  maybe  thought  of  the  accufalion,  .  in  that 
point  of  view,  there  can  be  no  difficulty  in  confidenng  Mr. 
Addifon’s  cooduft  on  the  28th  of  March,  as  evidence  of  tne 
deportment  which  he  intended  to  obferve  towards  Mr.  Lucas, 
in  all  their  official  relations  ;  and  it  will  well  ferve  to  difclofe  the 
motives,  that  a&uated  him  on  the  preceding  2.2d  of  June.  I 
proceed,  therefore,  to  examine  the  fecond  article  of  impeacn- 


ment. 

The  a- tide  now  under  confideration,  prefents  two  points  for 
difeuffion  :  the  firft  is,  that  Mr.  Addifon  ufurped  an  authority, 
not  veiled  in  him  by  the  conftitution  or  the  law.  The  fecond 
is,  that  he  flopped,  threatened,  and  prevented  Mr.  Lucas  from 
difeharging  a  public  duty.  The  fads  of  the  cafe,  while  he  ail¬ 
ed  on  his  fingle  authority  in  the  morning,  or  when  he  acted 
jointly  with  Mr.  M‘Dowel  in  the  afternoon,  prove  the  whole  ot 
the  charge  ;  but  the  occurrences  of  the  morning  are  fumcien 
for  every* purpoie  of  the  impeachment,  except  that  no  direc 
threats  were  then  uttered.  Nay,  I  fhould  be  willing,  \vere 
requifite,  to  reft  the  caufe  upon  the  tranfaclion  01  the  morning, 
when  Mr.  Addilon  and  Mr.  Lucas  only,  conftituted  the  coun  ; 
and  before  he  had  the  fan&ion  of  Mr.  M ‘Dowel ;  for,  it  is  en¬ 
vious,  that  the  gift  of  the  charge  was  at  that  period  conium- 

ir.ated. 


[  lot  ] 


A  fcene  of  greater  art,  or  bolder  tyranny,  has  never  occur** 
ed  in  any  court  of  juftice,  fince  the  days  of  "Jefferies.  I  am 
bold  in  making  the  affertion  ;  for  I  am  confident  that  the  re- 
fearch  of  the  fenate  will  not  find  a  parallel  ;  And,  yet,  it 
might  be  faid  of  Jefferies,  as  I  believe  fome  are  difpofed  to  fay 
for  the  defendant,  that  on  queftions  of  property,  or  in  cafes  of 
mere  private  altercation,  Jefferies  was  an  able,  and  an  honeff 
judge.  It  was  only  when  Jefferies  was  inftigated  by  the  fpirit 
of  party,  or  prompted  by  the  influence  of  the  crown,  tnat  he 
became  a  tyrant,  and  the  curie  of  the  Britifh  courts  of  juftice. 
The  inftruments  on  the  prefent  occaiion  were  firft  artful  perfua- 
lion,  then  terror,  and  finally  menaces.  Let  us  go  on,  ftep  by 
ftep  ;  and  if  the  impreflion  has  been  made  on  the  minds  of  the 
fenate,  as  it  has  been  made  upon  my  mind,  they  will  agree  in 
the  fidelity  of  the  portrait,  which  it  is  my  duty  to  exhibit, 
without  exaggeration,  I  grant,  but  alio,  without  flattery.  The 
court  confifted  of  Mr.  Add.'fon  and  Mr.  Lucas  only,  after  Mr. 
M‘Dowel  had  left  the  bench  on  the  morning  of  22d  June,, 
which  he  did  before  Mr.  Addifon’s  addrefs  to  the  grand  jury 
was  commenced.  It  will  be  here  obferved,  that  Mr.  Lucas’ 
prefence  gave  form  and  body  to  the  court,  and  the  addrefs  ought 
to  be  confidered  an  adt  of  the  court.  Yet  no  communication 
was  made  by  Mr.  Addifon  to  Mr.  Lucas  of  the  topics,  on 
which  he  meant  to  addrefs  the  grand  jury  ;  of  courfe  Mr.  Lu¬ 
cas  could  give  no  affent  to  the  adt  ;  and  without  his  exprefs  af~ 
fent,  or  his  filence  implying  aiient,  it  could  not  be  confidered 
as  an  adt  of  the  court :  for,  I  prefume,  it  is  fufficiently  fhewn, 
that,  when  there  are  but  two  judges  on  the  bench,  they  mull 
agree  in  opinion,  before  any  opinion  can  be  alleged  to  be  given 
by  the  court. 

This  was  the  fituation  when  Mr.  Addifon  had  clofed  his 
charge  to  the  jury.  Mr.  Lucas  then  made  an  attempt  to  ad¬ 
drefs  the  fame  jury  ;  but  he  was  flopped,  and  perfuafion  was 
ufed  to  prevent  him  from  going  on.  He,  then,  ftatcd  that  it 
was  his  right  to  proceed  ;  and  that  he  was  determined  to,  exer- 
cife  the  right,  becaufe  he  fuppofed  it  alio  at  that  time  to  be 
his  duty.  Mr.  Addifon  mentioned  to  the  jury,  that  Mr.  Lucas 
had  not  informed  him  what  he  intended  to  fay,  and  inftantly 
Mr.  Lucas  offered  Mr.  Addifon  the  perufal  of  a  paper  he  had 
in  his  hand.  This  manifelled  a  difpofition  to  do  what  Mr.  Ad¬ 
difon  had  not  done  to  him  ;  and  he  might  have  read  it,  if  he 
had  clioofe  to  do  fo,  with  a  view  to  difplay  the  candor  which  he 
has  told  us  he  poffeffes.  This  however  was  not  his  conduct,  he 
contented  himfelf  with  requefting  Mr.  Lucas  to  wait  until  the 

O  i 


[  102  ] 

afternoon,  faying  that  the  right  would  not  be  impaired  by  fuf- 
pending  its  exercife  till  then  ;  or,  if  he  had  the  right  now, 
he  would  equally  have  it  then.  When  Mr.  Lucas  prelfed  again 
to  addrefs  the  jury,  Mr.  Addifon  faid,  “  the  jury,  if  they 
pleale,  may  Ifay  and  hear  the  gentleman,  but  as  to  me,  the 
couit  may  conlider  itfelf  adjourned.”  Thus,  we  difcover  that 
by  fair  means,  or  by  foul,  he  was  determined  to  accorr.plifh  his 
onjert  ;  the  Hep  which  he  took  put  an  end  to  the  admmiftration 
of  juflice  ;  and  our  country  was  altonifhed  to  behold  a  court 
oroKen  up  by  the  dilorderly  conduct  of  the  prefiding  judge  ; 
sh  the  ufual  iolemmties  of  an  adjournment  laid  aiide  ;  and  the 
bencn,  :he  bar,  the  jury  and  the  audience,  retiring  in  confu- 
fior.  and  difmay. 

Tne  irregular  and  abrupt  breaking  up  of  the  court,  I  do 
not,  nowever,  mean  to  prefs  as  a  fubflantive  charge  of  mifde- 
meanor,  upon  which  Mr.  Addiion  is  to  be  found  guilty  by 
the  fenate,  as  it  is  not  diredtly  laid  in  the  articles  of  impeach¬ 
ment  ;  but  tne  incident  is  fairly  and  forcibly  applied  to  prove, 
tnat  Mr.  Lucas  was  flopped  and  prevented,  by  means  the  mofl 
indecorous  and  lawiefs,  from  exerciiing  his  official  right.  The 
Icene,  I  repeat,  exhibited  an  affociate  judge  degraded  ;  a 
court  of  juflice  expofed  to  ridicule  and  contempt  ;  the  admi¬ 
nistration  of  juflice  obftru6ted  ;  the  right  of  the  grand  jury  in¬ 
fringed  ;  and  the  duty  of  the  great  inqueft  of  the  county  fu- 
perfeded  ;  by  the  arbitrary,  intemperate  and  diforderly  con¬ 
duct  of  the  prefiding  judge  !  What  emotions  does  the  review 
or  fach  transactions,  even  at  this  day,  excite  in  every  mind, 
that  feels  for  the  honor  of  Pennfylvanra  ?  Think,  then,  what 
mull  have  been  the  fenfations  excited  in  thofe  who  were  pre- 
fent  at  the  period  of  humiliation  !  But  independent  of  the 
manner,  let  us  reflect,  whether  the  prefiding  judge  had  a  co¬ 
lor  of  authority  to  diiTolve  the  court,  in  this  abrupt  and  irre¬ 
gular  manner.  Was  the  adjournment  pronounced  by  him,  an 
adjournment  m  contemplation  of  law  ?  No,  fir :  he  knows  it 
was  not  ;  he  knows  it  could  not  be  a  legal  adjournment.  The 
fame  power  is  neceiTary  to  adjourn  a  court,  that  is  neceffary 
to  form  it.  If  by  the  law  two  judges  are  required  to  confti- 
tute  a  court  ;  the  court,  being  once  in  feffion,  cannot  be  ad¬ 
journed  without  their  joint  affent.  The  prefiding  judge,  in 
fuch  a  cafe,  might  by  violence,  or  by  feceffion,  annihilate  the 
court,  but  he  alone  never  could  adjourn  it  :  And  mark  the  legal 
confequence  !  1  he  court  being  diffolved  without  an  adjourn¬ 
ment,  could  not  refume  its  functions  till  the  next  flated  term, 
t>r  feflions  ;  and  every  a 61  done5  every  trial,  and  every  judg- 


[  >°3  ] 

ment,  on  the  fame,  or  any  preceding  day,  was  coram  non  jucli- 
ce,  illegal  and  void.  2  Bac.  abr. 

This  country  never  before  witneffed  fo  extraordinary,  fo  dis¬ 
graceful,  a  feene.  If  Mr.  Addifon,  exerting  his  perfonal  prow- 
efs  and  phyfica.1  ftrengtb,  had  chofen  to  ft ri he  Mr.  Lucas  nom 
the  bench,  inftead  of  retiring  himfelf,  Mr.  Lucas  might  have 
fuffered  greater  inconvenience,  but  the  law  would  only  have 
fuftamed  an  equal  outrage.  v\  netner  Ivlr.  Lucas  was  knoci>.cu 
down,  or  fent  to  jail,  or  Mr,  .Addifon  deierted  his  poft,  x  1  •  c 
effeft,  in  the  exifting  ftate  of  things,  would  be  the  fame  ;  a 
dilTolution,  not  an  adjournment,  ot  the  court.  Then  let  us 
caft  an  eye  towards  the  evidence  and  ‘'he  defence,  to  cite,  ix 
we  can,  a  glimpfe  of  lomethmg  to  extenuate,  or  excufe,  fuch 
conduct:  for,  jufttfication  can  no  longer  be  pretended.  Will 
it  be  thought  an  excufe,  that  Mr.  Addifon  did  not  know  the 
contents  of  the  paper,  which  Mr.  Lucas  meant  to  read  ?  Cer¬ 
tainly  not ;  for  he  might  have  read  it,  if  he  pleafed,  or  if  he 
wifhed  to  fpare  the  degradation  of  the  court.  Would  the  de¬ 
livery  of  the  addrefs,  have  impeded  the  bufmefs  of  the  court  ? 
It  would  not  have  confumed  the  time  loft  by  the  altercation  ; 
and  certainly  could  not  have  been  fo  inconvenient  on  the  quef- 
tion  of  difpatch  as  an  adjournment.  Will  the  out-door  agree¬ 
ment  of  the  prefident  and  fome  of  the  aflbeiate  judges  excufe 
him  ?  In  all  matters  of  agreement,  the  perfons  muft  have  a  le¬ 
gitimate  power  to  agree  ;  and  the  fubjeft  of  the  agreement 
muft  be  a  lawful  one  ;  the  agreement  is  nugatory  and  void  : 
but  inter  pares  non  eft  potejlas  ;  a  majority  of  the  judges  could 
not  difrobe  the  minority  of  any  part  of  their  judicial  charac¬ 
ter  ;  nor  could  an  unanimous  concurrence  juftify  the  furrender 
of  any  individual  right,  which  each  judge  holds  in  tiuil  for 
the  benefit  of  fociety. 

Let  us  again  put  a  cafe,  hypothetically.  Suppofe  the  pre¬ 
fident  and  three  afTociate  judges  being  of  the  fame  political 
party,  make  an  agreement,  that  the  prefident  {hall  deliver  all 
*«  extra  matter”  to  a  grand  jury  ;  and  in  purfuance  of  this 
agreement,  he  eulogizes  one  party,  at  the  expence  of  the 
other  :  Shall  a  judge,  belonging  to  tnat  other  party,  be  doom¬ 
ed  to  lit  in  filent  anguifh,  while  he,  his  friends,  and  his  co¬ 
patriots  are  vilified  and  traduced,  without  jull  caufe  ?  Muft  he 
iiften  patiently  to  the  commendation  of  meafures,  which  he 
condemns,  and  to  the  arraignment  of  motives  which  he  approves? 
In  fhort,  muft  he  exhibit,  from  time  to  time,  the  culprit,  and 
not  the  judge,  upon  the  bench  ;  while  the  political  charges  ot 
the  prefident,  acting  uniformly  and  constantly  on  the  putl.c 


[  104  j 

'N.  1 

irmd,  like  drops  of  water  continually  falling  on  the  fame  foot 
work  a  deep  impreffion  ;  or  like  the  influence  of  a  {lone  upon 
tne  fmootn  furtace  of  a  lake,  extending  circle  beyond  circle 
from  the  jury  and  auditors  to  their  families,  their  neighbors, 
and  their  diftant  acquaintances,  until  the  whole  community  is 
aflected  by  the  political  tendencies  of  the  judicial  politician. 

It  is  faid  by  Lord  Bacon ,  that  the  beft  law  is  that,  which 
leaves  the  lead  liberty  to  the  judge  ;  and  he  is  the  bed  judo-e 
who  takes  the  lead  liberty  to  himfelf.  True,  in  the  prefent  it 
itance,  the  law  left  no  liberty  to  the  judge  to  addrefs  grand 
juries  on  points  foreign  to  their  ends  of  their  inflitution  ;  but  it 
is  equally  true,  that  the  judge  affumed  more  power,  than  was 
ever  contemplated  to  be  given  to  a  court,  much  lefs  to  an  indi¬ 
vidual  magillrate. 

I  have  exploded  the  ground,  to  find  if  pra&icable,  an  excufe 
for  the  condufl  of  Mr.  Addilon.  I  can  find  none  :  And  the 
learned  judge  will  not,  I  prefume,  pretend  that  he  did  not 

know  of  the  application  to  the  fupreme  court,  and  the  refult 
ot  it. 

Mr.  Addifon  faid  he  knew  nothing  of  the  refult  but  what 
was  printed  in  the  newfpaper ;  and  the  dodlrine  there  dated, 
not  being  founded  accoiding  to  his  judgment,  he  conceived  it 
to  be  an  erroneous  report: 

Mr.  Dallas  allowed  him  full  credit  for  what  he  dated. 

Adjourned. 

THURSDAY,  January  20,  1S03. 

Mr.  Dallas.  The  attention  obferved  by  the  fenate,  in  the  ex¬ 
amination  of  the  prefent  caufe,  fhews  its  importance  ;  and  mud 
prove  highly  fatisfadory  to  the  public  mind,  as  it  gives  a  well 
grounded  afiurance,  that,  whatever  may  be  the  decifion,  it 
will  comport  with  judice.  To  me  the  appearance  of  this  at¬ 
tention  has  been  peculiarly  gratifying  ;  becaufe,  if  I  have  er¬ 
red  in  any  ftatement  of  fa&s,  or  if  I  have  drawn  any  unwar¬ 
ranted  inierences  from  the  evidence,  the  members  are  prepared 
to  correct,  and  refute,  the  unintentional  departure  from  the 
jud  dandard  of  invedigation.  I  dated  yederday,  that  the  at¬ 
tempt  of  judge  Lucas  to  addrefs  the  grand  jury  was  founded 
on  a  conditutional  right ;  and  that  in  cafe  of  difagreement 
with  nis  brethren,  it  involved  a  duty,  which  he  was  bound  to 
perform.  I  endeavored  to  edablifh  this  general  proportion 
from  the  conditution  of  the  office,  and  the  nature  of  the  ju¬ 
dicial  character.  I  then  proceeded  to  fhe\v,  (and  I  trud  I  did 


[  ic>5  3 

it  to  the  fatisfadhon  of  the  fenate)  that  tins  con  llitutiona] .right 
and  duty  were  co-extenfive,  and  that  each,  and  every  judge, 
on  the  fame  bench,  was  equally  pofieffed  of  the  right,  and 
equally  bound  to  difcharge  the  duty.  The  conftitution  made 
no  defcrimination  ;  and,  therefore,  none  could  exift  :  fo;  the 
legiflature  had  no  power  to  legiflate,  refpeding  a  conftitu- 
tionally  defined  and  veiled  right  ;  and  if  the  legiilature  could 
not  interfere,  much  lefs  could  a  fubordmate  department ;  and 
ft  ill  lefs  could  the  equal  members  of  the  fame  tribunal,  law¬ 
fully  undertake  to  barter  and  dellroy  each  others  rights..  Tne 
adtion  in  the  morning  of  the  2 2d  of  June,  was  the  action  o( 
the  defendant  alone,  and  without  color  or  excufe  ;  and  even 
the  adtion  of  the  afternoon,  which  is  refeired  <_o  the  authority 
of  the  court,  lofes  all  foundation,  when  that  authority  is 
brought  to  a  conlhtutional  tell. 

On  the  behavior  of  Mr.  Addifon  to  Mr.  Lucas,  upon  the 
28th  March,  in  the  cale  of  Coulter  v.  Moore,  it  the  teliimony* 
made  the  fame  lirpreiilon  on  t lie  minds  cr  the  fenate,  tnat  it 
made  on  my  mind,  it  will  not  be  neceflary  to  dilate.  ^  The  de- 
fign  and  operation  cannot  be  millaken.  Mr.  Lucas  had  icaiceiy 
taken  his  feat  on  the  bench,  and  openeu  u«s  commifiion,  when 
he  was  denounced  by  the  prefident.  Such  condudt  cai«.ied 
with  it  fentiments  of  perfonal  hoilility  :  The  words  imply  it, 
independent  of  the  manner  of  fpeaking,  and  the  deportment 
of  the  defendant.  Mr.  Lucas  had  given  no  caufe'  of  offence  ; 
he  had  done  no  official  a&  as  a  judge  :  How  then  are  wt  to. 
account  for  the  attack  ?  We  mull  look  for  it  in  the  fpirit  of 
party,  which  divided  the  community  ;  we  mull  trace  it  back 
to  fomething  that  had  occurred  before  Mr.  Lucas’  appointment. 
We  know,  that  not  only  that  part  ol  the  Hate,  but  in  c.ci y 
diftrid  of  the  United  States,  parties  have  long  run  high  ;  al- 
moll  in  equilibrium  with  point  of  numbers  ;  and  diilinguilhcd 
by  affirmed  denominations,  or  by  nick  names,  which  they  have 
given  to  each  other.  Thefe  gentlemen  had  taken  different 
fides  in  the  political  warfare  ;  and  the  prefident,  fo  .far  from 
acling  in  a  fpirit  of  conciliation,  declared  open  hoftilities  again  It 
his  alfociate  from  the  firft  moment  of  their  entering  the  fame 
judicial  field  ;  and,  fighting  under  the  banner  of  party,  he  at¬ 
tempts  to  ovei  power  Mr.  Lucas  by  the  auxiliary  of  the  out¬ 
door  agreement,  idly  called  a  rule  of  court.  From  the  com¬ 
mencement  to  the  clofe  of  the  tranfadlion,  whether  hit.  Ad¬ 
difon  was  alone  with  Mr.  Lucas,  as  in  the  morning  ;  or  whe¬ 
ther  he  was  fupported  by  Mr.  M‘Dowell,  as  in  the  afternoon  ; 
Hill  this  fell  and  deadly  fpirit  gf  party,  which  never  ought  to 


[  io6  ] 


intermingle  with  judicial  proceedings,  (and  which  I  fervently 
implore  may  not  influence  the  fenate  on  the  prefent  occafion  ) 
raged  with  indecent  and  unrelenting  fury.  ' 

(Mr.  Addifon  was  unwilling  to  interrupt  Mr.  Dallas*  but 

he  did  not,  he  might  proceed  in  his  argument,  upon  a  mif! 
L.iken  fact.  1  he  teftimony  of  Mr.  M ‘Do well  Hated,  that  the 
agreement,  authoring  the  prefident  to  deliver  exclufively  the 
charges  to  grand  juries  was  made  fo  far  back  as  1791,  when 
it  could  not  have  any  relation  to  party  fpirit  :  the  other  judges 
were  Wallace,  Wilkins,  jun.  and  Giblbu.)  J 


Mr.  Dallas.  This  interruption,  I  allure  the  gentleman,  can 
ua\e  no  effect,  either  upon  my  temper,  or  my  argument.  I 
did  not  fay  the  agreement  was  formed  for  the  cafe  of  Mr.  Lu¬ 
cas  ;  but  that  it  was  applied  to  his  cafe,  in  order  to  prevent 
a  contradiction  of  political  principles,  which  the  prefident  in¬ 
dulged  in  his  party  charges. 


When  I  was  proceeding  yefterday  on  the  fubjeft  of  the  fe- 
cond  article  of  the  impeachment,  l  avowed  that  1  was  willing 
to  reft  the  caufe  upon  what  took  place  in  the  morning  ;  for,  the 
delinquency  of  Mr.  A.  was  confummate,  at  the  breaking  uo  of 
the  court :  but  I  will  not  repeat  the  detail,  further  than  to  remind 
the  lenate,  that  from  the  firft  opening  of  judge  Lucas’  lips,  to 
the  final  prevention,  there  was  a  fyftematic  oppofition  to  his  ad- 
dreffing  the  grand  jury, .  Mr.  Addifon  conflantly  averting  his 
right  to  the  exclufive  privilege  of  delivering  the  charge.  In  the 
morning  the  language,  and  even  the  geftute  of  perfuafion  was 
employed  ;  but  that.  efFort  proving  ineffectual,  and  the  defend¬ 
ant  aware  that  one  judge  could  not  control  the  other,  while 
there  were  but  two  judges  upon  the  bench,  he  fought  fimply^ 
but  artfully,  a  poflponement  till  the  afternoon,  affuring  Mr! 
Lucas,  that  if  he  had  the  right  to  addrefs  the  jury,  it  would 
be  unimpaired,  and  unefTefted,  by  the  delay.  If  you  analyfe 
the  teftimony,  you  will  find  that  this  humor  of  condefcenfion 
and  perfuafion,  pafTed  off  with  the  necefiity  of  the  morning 
fcene.  .  In  the  afternoon,  when  the  prefident  found  himfelf  in 
a  lit  nation  to  coerce,  he  no  longer  depended  upon  the  effeCts 
,of  mildnefs,  or  politenefs.  It  will  be  recolle&ed,  too,  that 
among  other  arts  to  gain  his  objeCt,  the  defendant  had  re- 
courfe  to  complaint,  telling  the  jury,  that  Mr.  Lucas  would 
not  communicate  what  he  wiftied  to  fay  to  them  ;  yet  it  will, 
alfo,  oe  recoheCIed,  that  wnen  Mr.  Addifon  was  offered  the 
paper  containing  Mr.  Lucas’  obfervations,  he  did  not  then 
tgke  it  ;  and.  that  Mr.  M‘Dowel  declined  readme  it  upon  a 
limilar  offer  in  the  afternoon. 


L  I07  ] 


Having  alluded  to  the  charges  in  this  general  way,  I  had 
next  explored  the  ground  of  defence,  and  if  polhble  to  con¬ 
jecture  an  excufe,  for  the  enormous  outrage  of  breaking  up, 
in  tumult  and  diforder,  a  court  of  juftice.  I  gathered  from 
the  queftions  put  to  the  witneffes,  that  the  defendant  meant  to 
infinuate,  that  he  refitted  Mr.  Lucas’  exercife  of  his  right, 
in  order  to  fave  time  ;  but  the  reading  of  Mr.  Lucas’ ^ re¬ 
marks  would  not  have  occupied  many  minutes  ;  it  certainly 
would  bear  no  proportion  to  the  expence  of  time  and  trea- 
fure,  which  might  refult  to  the  court  and  fuitors,  from  the  dif- 
graceful  expedient,  to  which  he  had  reloited. 

Another  pretence  has  been  fuggetted  as  an  excufe  ;  igno¬ 
rance  of  the  contents  of  the  paper,  and  ignorance  of  the  law, 
on  the  right  of  Mr.  Lucas.  “  I  am  not,  fays  the  learned 
judge,  to  be  charged  and  punifned,  unlefs  it  is  proved,  that  I 
have  committed  an  offence,  that  I  knew  the  act  to  be  an  of¬ 
fence,  and  committed  it  with  an  evil  intention.”  Lawyers  are 
accuflomed  to  hear,  that  ignorance  of  the  law  is  no  excufe. 
even  in  a  common  farmer  who  has  never  opened  a  law  book. 
What  fhall  we  fay  of  a  prefiding  judge,  emphatically  a  legal 
character,  and  claiming  to  be  the  excluiive  organ  of  the  court 
in  which  he  prelides,  fetting  up  the  plea  of  ignorance  as  a 
juftification  for  fuch  an  outrage  ?  Of  what  was  he  ignorant  ? 
of  the  fundamental  laws  of  the  ftate  !  of  the  provifions  of  the 
conttilution  !  Is  it  conceivable,  that  he  who  was  a  member  of 
the  convention  that  formed  the  conftitution  ;  who  heard  all  the 
cotemporaneous  expefitions  and  animadverfions  of  his  fellow- 
members,  fhould  be  thus  ignorant  of  the  terms  and  fair  interpre¬ 
tation  of  the  inflrument  ?  others  may  be  at  a  lofs  to  know 
the  law  ;  but  furely  this  gentleman,  who  had  affitted  in  fram¬ 
ing  the  plan,  by  which  the  affociate  judge  was  made  the 
equal  of  the  prelident,  cannot  be  allowed  the  plea  of  io-no- 
ranee.  It  is  impofiible  that  he  can  fo  far  impofe  upon  him- 
felf,  as  to  receive  into  his  mind  a  conviction,  that  he  did  not 
calculate  exactly  the  quantum  of  power  belonging  to  every 
judge  on  the  bench.  The  fenate  have,  indeed,  °heard  the 
defendant’s  own  argument  on  this  point,  in  the  year  1791,  fo 
different  from  his  prefent  defence.  Yet,  let  us  fuppofe,  that 
he  was  not  informed  as  to  the  equal  rights  of  the  judges  of 
the  fame  court,  will  he  declare,  that  he  wa3  ignorant  of  the 
law,  which  prohibits  a  judge  from  a  riotous  and  diforderly 
diffolution  ol  a  court  of  juflice  ?  Is  there  a  gentleman,  fo  un¬ 
lettered  in  legal  learning  ?  Is  there  a  child,  who  has  acquired 
the  hrtt  rudiments  of  education,  as  not  to  know,  that  when 
two  judges  are  neeefTary  to  compofc  a  court*  the  confent  of 


[  108  ] 


both  is  neceffary  to  the  adjournment,  and  that  it  is  not  in  the 
power  of  one  of  them  to  declare  all  proceedings  fufpended. 
This  knowledge  does  not  require  legal  erudition  ;  it  requires 
only  common  fenfe. 

Is  it  poffible,  that  a  plea  of  ignorance  can  reach  this  com¬ 
plicated  cafe,  in  which  the  law  of  decorum  is  as  grofsly  vio¬ 
lated,  as  the  law  of  the  land  ?  Still,  however,  I  mean  not  to 
deorive  the  defendant  of  any  advantage,  which  he  can  claim, 
from  the  omiffion,  to  introduce  all  bis  irregular  and  diforderly 
conduct,  into  the  form  of  the  accufation  ;  and  I  ufe  it  only 
as  evidence  of  his  motives  and  his  manners,  in  relation  to  the 
offences  actually  charged. 

But,  let  us  imagine,  that  the  plea  of  ignorance  may  be  rea- 
fonably  allowed,  as  to  the  firfi  interruption  of  Mr.  Lucas,  in 
March  term  1800,  can  any  latitude  of  charity,  or  indul¬ 
gence,  extend  it  to  the  interruption  in  the  June  term  fol¬ 
lowing  ?  The  judge  who  had  fuffered  the  interruption  in 
Match,  appealed  to  the  laws  of  his  country ;  but  the  fu- 
preme  court,  conceiving,  that  as  the  afts  of  ML  Addifon 
were  done  as  a  judge,  in  court,  they  had  no  power  to  try 
or  punifh,  refufed  to  grant  an  information  againft  him.  What, 
however,  paffed  on  the  occafion  was  notorious  to  erery  man 
in  the  country  ;  and  although  we  ought  not  to  affirm,  in  par¬ 
ticular,  that  Mr.  Addifon  had  notice  of  the  proceedings  in  the 
fupreme  court,  as  the  faft  is  not  in  evidence,  a  fenfe  of  cha¬ 
racter  will  not  permit  him  to  deny  it.  The  opinion  of  the  fu¬ 
preme  court,  on  the  equal  rights  and  duties  of  the  judges, 
conftituting  the  fame  court,  is  ftated  in  the  Tree  of  Liberty 
cf  the  nth  April,  1800  ;  and  although  I  am  willing  to  admit 
(nay,  it  is  the  ltrength  of  one  part  of  my  argument)  that  a 
judge  is  to  aft  upon  his  own  judgment,  and  is  not  bound  by 
the  judgment  of  another,  however  fuperior  in  flation,  learn¬ 
ing,  or  experience  ;  yet,  the  plea  of  ignorance,  on  a  legal 
queflion,  is  repelled  the  moment  we  find  the  defendant  had  a 
fair  opportunity  of  ascertaining  the  law,  by  the  authoritative 
expohtion  of  the  liighefl  judicial  tribunal  of  the  ftate. 

The  defendant  fays,  and  he  fays  truly,  that  an  indiftment 
is  not  the  proper  way  to  try  a  right  ;  but,  fir,  we  are  not  try- 
ins-  a  rio-ht,  we  are  trying  an  offence.  The  right  which  we 
contender  is  the  right  of  the  affociate  judge  to  think,  and 
to  fpeak.  If  his  ideas  were  as  crude,  enthufiaftic,  and  malig¬ 
nant,  or  his  ftatements  as  falfe  and  exaggerated,  as  any  that 
we  find  in  the  writings  cf  Barreul  and  Robinfon,  it  would  be  as 
much  his  right  to  deliver  them,  as  it  was  the  right  of  the  pre- 
fiding  judge,  to  utter  the  effufions  of  a  party  fpint,  again!! 


[  io9  ] 


the  illuminati,  the  jacobins,  the  democrats,  and  the  leg-na¬ 
tures  of  Virginia  and  Kentucky  :  Nor  could  the  right  of  judge 
Addifon  to  interrupt  mr.  Lucas*  be  traced  to  a  better,  or 
more  legitimate  fource,  than  the  right  of  Mr.  Lucas  to  cor- 
redt  the  errors  and  mifreprefentations  of  the  prefident. 

^any  of  the  arguments  employed  in  the  defence,  lead  to  a 
held  of  difcuflion,  that  mull  be  the  field  of  the  defendant’s 
defeat.  Thus,  when  we  contend  for  the  right  of  Mr.  Lucas, 
he  refers  us  to  another  courfe  to  eftablifh  it, —to  feme  unfpe- 
cihed  torm  of  civil  procefs  :  Yet,  when  he  claimed  the  rio-ht 
to  prevent  Mr.  Lucas  from  addrefling  the  grand  jury,  did°he 
think  either  of  an  information,  or  of  any  civil  addon,  to  de¬ 
cide  the  controverfy  ?  No,  fir,  he  took  the  law  into  his  own 
hands,  and  decided  by  his  own  adt,  in  favor  of  his  own  pre- 
ten  lions  ;  and  having  done  this  wrong,  he  makes  it  the  bafis  of 
his  defence,  declaring,  in  effed,  that  although  the  offence  was 
agrant,  and  complete  on  his  part,  yet,  the  manner  of  com- 
muting  it,  enfured  him  perfed  impunity,  fince  the  right  mult 
be  eitablifhed  by  civil  procefs ;  and  criminal  procefs  could  not 
be  instituted  for  mere  ignorance  of  the  law  ? 


....nvo  ,  Lucy  wm  nmict  upon  tne  of- 
e^emplary  punifliment,  and  rellore  peace  and  order 


to  the  adminiltration  of  jultice. 


P  t 


[  no  ] 


Something  h?.3  been  intimated,  to  (hew  that  there  were  in¬ 
dications  of  perfonal  malice,  in  Mr.  Addifon’s  firil  denuncia¬ 
tion  of  Mr.  Lucas  ;  but,  I  will  grant,  that  the  petty  jarrings 
of  individuals,’  the  heats  and  jealoufies  of  private  life,  that 
conftitute  a  caufe  for  impeachment.  Whatever  perfonal  ma¬ 
lice  rankled  in  Mr.  Addifon’s  heart  towards  Mr.  Lucas,  how¬ 
ever  it  might  operate  to  difturb  the  harmony  of  focial  intercourfe, 
it  could  not  engage  the  attention  of  this  tribunal,  unlefs  it  af- 
fumed  an  official  form,  and  was  directed  into  channels  injurious 
to  the  public  interefts.  Not  private  malice,  but  public  ma¬ 
lice  ;  not  perfonal  ill-will,  but  official  delinquency  ;  are  the  fub- 
jedts  of  impeachment  :  but  public  malice  (if  I  may  fo  fpeak)  is 
implied  in  official  delinquency  ;  as  individual  malice  is  implied 
in  the  very  a£t  of  homicide.  Thus,  is  the  official  deportment 
of  Mr.  Addifon  towards  Mr.  Lucas,  from  the  moment  he 
was  publicly  denounced,  to  the  laft  period  of  his  degradation, 
by  threatening  to  fend  him  to  jail,  we  collect  the  indications 
of  a  haughty  mind,  regardlefs  of  the  obligations  of  the 
law,  and  fatally  bent  upon  his  own  aggrandizement,  at  the 
expence  of  official  right,  decency,  and  duty.  Whatever, 
therefore,  of  perfonality  was  in  the  motive,  the  mifchief  of 
the  a tt  was  public,  and  carries  with  it  the  legal  imputation 
of  malice. 

We  will  not  go  into  a  detailed  examination  of  Mr.  Addifon’s 
charges  to  grand  juries  ;  but,  it  is  evident,  that,  in  the  belt 
of  them,  he  largely  indulged  himfelf  in  fpeculative  points.  In 
thole  instances,  however,  let  us  be  fatisfied,  in  reflecting,  that 
if  he  did  no  'good,  he  did  no  harm  ;  except,  indeed,  by  a 
wafte  of  that  public  time,  of  which  he  was  fo  parfimonious, 
when  a  brother  judge  wilhed  to  lhare  a  part.  Yet,  if  the 
fyftem  of  Mr.  Addifon’s  charges  was  to  elevate  one  fet  of  ci¬ 
tizens,  and  to  deprefs  another,  fair  play  required,  that  both 
fides  of  the  queftion  ffiould  be  heard  ;  and  in  relation  to  the 
“  extra  matter,”  or  political  portions,  or  his  judicial  leCtures, 
it  was  ur.juft  and  dilhonorable  to  deny  to  Mr.  Lucas,  for  him¬ 
felf  and  his  friends,  the  opportunity  of  vindication  and  reply. 
If  Mr.  Addifon  enjoyed  a  fuperior  degree  of  learning,  and  a 
more  exteulive  fphere  of  influence.  Ins  delinquency  was  propor¬ 
tionally  greater  in  the  abufe  cf  his  official  trull,  to  dilfeminate 
party  politics,  and  to  excite  domeilic  animofity.  Nay,  the  to- 
p’cs  of  the  prefident  s  charges  were  often  treafon  againll  the 
vital  principle  of  our  government.  A  reprefentative  republic 
m  i ft  languish  and  expire,  if  the  fource  of  its  life  and  duration, 
the  right  of  election,  fnall  be  poifoned,  or  cut  off,  or  brought 
into  contempt.  When,  therefore,  the  prefiding  judge  inveigh- 


[  I”  ] 


td  again!!  the  iflue  of  the  general  elections,  as  fymptoms  of 
popular  corruption,  he  attempted  in  e!Fe£!  to  undermine  the 
confidence  and  attachment  of  the  citizens,  in  the  republican 
inftitution  which  they  had  eftablifiied  ;  and,  as  far  as  in  him  lay, 
fought  to  fubvert,  what  he  had  fworn  to  fupport.  When  fuch 
an  attempt  is  made  by  an  allufion  to  the  influence  of  the  Illu¬ 
minati,  jacobins,  democrats,  and  fecret  focieties,  upon  our  elec¬ 
tions,  he  ought  to  be  corre&ed,  and  the  manner  in  which  Mr. 
Lucas  attempted  to  correct  him  was  certainly  not  too  fevere 
for  the  occafiom  We  have  heretofore  heard  the  toefin  of 
alarm  founded  ;  tales  of  plots  and  confpiracies  have  been  anxi- 
oufly  fabricated  and  circulated  by  “  the  friends  of  order  and 
good  government and  our  women  and  children  have  been 
terrified  with  the  impending  horrors  of  taylors,  tubs,  clues  ! 
Nay,  the  very  letters  of  the  alphabet  have  been  maWhalled 
again!!  the  peace  of  the  community  ;  and  X,  Y,  and  Z,  were, 
for  a  while,  the  fymbols  of  corruption  and  outrage,  of  foreign 
hoftility,  and  domeilic  difeord.  But  thefe  bubbles  have  va- 
niflied  into  air,  “  thin  air  the  malic  has  been  torn  from  the 
lace  of  the  impoftor,  and  the  triumphs  of  the  republicans  has 
produced  nothing  which  patriotifm,  or  humanity,  can  depre¬ 
cate,  or  deplore.  But  if  the  Hate  of  Pennfylvania  deferved  to 
be  denounced  by  Mr.  Addifon,  for  the  refult  of  the  elections 
of  1799*  which  only  gave  a  majority  of  5000  votes,  in  op- 
pofition  to  his  wifhes,  what  muft  be  the  degree  of  depravity 
and  degradation,  to  which  her  citizens  have  fince  funk,  when 
we  find  that  the  majority  in  1802,  has  fwelled  to  the  unpre¬ 
cedented  amount  of  30,000  ! 

But,  to  refume  the  coniideration  of  Mr.  Addifon’s  conducl 
in  the  prefent  tranfa&ion.  Soothed  by  his  arts,  and  afiailed 
by  his  violence,  it  redounds  to  the  honor  of  Mr.  Lucas,  as  a 
public  officer,  that  he  contended  for  an  official  right,  with  fo 
much  (leadinefs,  at  the  hazard  of  every  perfonal  accommoda¬ 
tion.  Nor  is  he  more  to  be  honored  for  the  manner,  in  which 
he  claimed  the  right  of  fpeaking,  than  for  the  matter,  which 
he  intended  to  deliver.  The  draft  of  his  addrefs  lies  before 
me.  Coniider  what  had  been  faid  to  the  grand  juries  by  Mr. 
Addifon,  on  political  and  party  topics,  and  no  man  ran  hefi- 
tate  to  pronounce,  that  the  obfervations,  propofed  to  be  made 
by  Mr.  Lucas,  were  judicious,  relevant,  temperate,  and  con¬ 
ciliatory.  Permit  me,  fir,  to  read  them  to  the  fenate  ;  and,  as 
the  defendant  has  intimated,  that  he  apprehended  a  confump- 
tion  of  time,  from  the  addrefs,  injurious  to  the  more  import¬ 
ant  bufinefs  of  the  court,  I  pray  you  to  mark  the  period. 


C  1,2  ] 

fliat  will  be  occupied  in  a  deliberate  perufal  of  the  contend, 
in  order  to  decide  upon  the  weight  of  that  objection. 

(Mr  Dalias  read  the  charge  from  the  Tree  of  Liberty, 
v...:ch  for.  Lucas,  on  the  crofs  examination  of  Mr.  Addi- 

fon,  had  tefhfied  to  be  the  one  he  intended  to  communicate, 
bee  the  appendix,  marked  G.) 

ls  there,  I  repeat,  a  man,  who  has  heard  this  paper  read, 
unwilling  to  acknowledge,  that  it  is  replete  with  good  fenfe, 
libei aliLp,  and  candor  ;  and  that  it  was  proper  to  go  to  the 
grand  jury,  after  what  had  been  delivered  fiom  the  bench  by 
tl  -  p.tLuwii  ?  The  pouon  was  virulent :  is  the  antidote  toQ 
ilrong  ?  Kow,  too,  do  we  find  fo  great  a  length  in  the  peiu- 
iai,  as  to  juftify  a  public  altercation  between  two  judges,  the 
fulpenfion  of  the  public  bnfinefs,  and  a  diforderly  dhTolution  of 
t 1  -  ^  com  t,  merely  to  avoid  a  lofs  of  time  ?  The  paper  has  been 
iv.;iA  m  ie.  ,  tiian  ten  minutes;  and,  furely,  thefe  few  minutes 
vvoidd  have  been  well  employed,  if  not  for  the  fake  of  the  ob- 
fu  \  ations  themfclves;  at  leaft  for  the  lake  of  prefervmg  harmo¬ 
ny,  order,  and  decorum,  in  the  court.  But  the  obfervations 
themfelves,  form  an  honorable  contrail  with  the  political  effu- 
fions  cl  L.ie  defendant.  T.  hey  contain  no  language  of  infult, 
reproach,  or  retaliation.  There  is  no  diiplay  of  an  intolerant 
and  vindictive  party  fpirit.  The  very  occafion  for  interfering  is 
lamented  ;  the  interference  appears  to  be  compelled  by  a  moral 
peceffity,  not  to  be  purfued  to  indulge  a  pertenacious  difpofi- 
tion  ;  nor  was  it  an  adlion  to  make  a  new  imprelfion  cn  the 
minds  of  the  jury,  but  a  counter-a&ion,  to  remove  an  evil  im- 
prefiion  prev  ioufiy  made.  It  would  have  been  highly  advan¬ 
tageous  n  the  public,  that  fo  much  good  fenfe  »and  honefl  truth 
fiiould  oe  oppofed  to  plagiarifms  from  Barruel  and  Robinfon,  or 
pnantoms  railed  by  the  zeal  of  a  party  politician.  It  was  faid 
by  Mi,  MTIowel,  in  the  courfe  of  his  teftimony,  that  he  had 
h^.ard  io  much  in  Mr.  Lucas’s  overture  to  addrefs  the  grand  ju- 
1)  >  yls  ro  con''Mce  him,  that  the  addrefs  had  no  relation  to  the 
outiesoi  the  office.  Let  us  appeal  to  even'  intelligent  and  can¬ 
did  auditor  to  decide,  whether  Mr.  Lucas’s  addrefs  was  not,  in 
moie  leievant  to  the  duties  of  the  grand  jury,  than  the 
charge  of  Mr.  Addifon.  In  the  former,  much  is  well  faid,  to 
allay  the  heats  of  prejudice  and  party,  and  to  enfure  an  impar¬ 
tial  and  faithful  difeharge  of  the  trull  confided  to  the  inqueil. 
In  tne  latter  (of  which  Mr.  ivi‘ Dowel  cordially  approved)  every 
inllrument  of  terror  and  invective  was  employed,  to  throw  the 
TiiiuCi  ori  its  Dias,  and  to  excite  emotions  of  hatred  and  perfecu- 
ti°n.  mat, -it  muil  llnl  be  remembered,  that  the  necellitv  of 


[  ”3  ] 

yfr.  Lucas’s  communication  was  produced  by  the  nature  of  Mr. 
^ddifon’s  charge  :  And  whatever  it  was  lawful  for  Mr.  Addi- 
on  to  do,  in  order  to  make  the  imprefiion,  which  he  deemed 
proper  ;  it  was  lawful  for  Mr.  Lucas  to  do,  under  the  influence 
)f  a  different  opinion,  to  avert  the  pernicious  confequences  of 
hat  imprefiion.  The  anfwers  of  the  defendant,  indeed,  to 
his  claim  of  equal  right,  are  as  verfatile,  as  they  are  arbitrary. 
Ml  one  time  it  is  denied,  becaufe  he  muff  not  offer  any  com- 
nent,  on  what  has  been  faid  by  the  prefldent,  who  alone  is  to 
ouch  upon  extra  matter.  At  another  time,  filence  is  impofed, 
jecarTe  it  is  conjectured  (for,  both  Mr.  Addifon  and  Mr. 
VTDowel  declined  the  opportunity  of  afeertaining  the  fact) 
hat  the  communication  does  not  relate  to  the  immediate  duties 
)f  the  grand  jury.  Thus,  between  the  privilege  of  the  prefi- 
lent,  and  the  functions  ot  the  jury,  the  rights  of  the  affociate 
•idge  were  put  in  abeyance  ;  with  a  difpofltion  and  dexterity, 
tot  unlike  thofe  difplayed  by  the  tyrant,  who,  to  regulate  the 
tature  of  his  fubjects  by  one  ftandard,  commanded  that  all  who 
vere  too  fliort  fhould  be  flretched,  and  all  who  were  too  long, 
hould  be  lopped. 

If  on  this  examination  of  the  evidence,  a  doubt  could  re- 
nain  of  the  delinquency  of  Mr.  Addifon,  on  the  morning  of 
he  2 2d  of  June,  that  douht  muft,  inevitably,  be  difpelled,  by 
tdverting  to  the  confeflion  of  Mr.  Addifon  himfclf.  Mark  the 
■voids  :  “7  took  upon  my f elf  the  rifque  of  flopping  you  in  the  morn- 
ng  ;  avcl  I  am  ready  to  anfzuer  for  the  confequences .”  Out  of  his 
nvn  mouth  do  we  thus  condemn  him.  In  this  declaration, 
‘  that  he  had  run  a  rifque,”  we  fix  his  confcioufnefs,  that  he 
rad  trar.fgrefled  the  limits  of  his  authority  ;  and  the  confequen- 
:es,  which  he  was  ready  to  encounter,  could  only  be  the  confe¬ 
rences  of  a  complaint  and  impeachment.  If  ajudgeadfcs,  in 
:ourt,  fairly  and  honeftly,  though  erroneoufly,  he  incurs  no 
•ifque  ;  lie  can  have  no  confequences  to  dread  :  it  muft  be  a  wil- 
ul,  intentional,  and  unlawful  act,  amounting  to  a  mifdemean- 
)r,  to  involve  him  in  any  rifque.  Either,  therefore,  in  the  irfat- 
:er,  or  in  the  manner  of  the  proceeding,  the  defendant  knew, 
:hat  his  official  conduft  had  placed  him  in  a  ftate  of  refponfibili- 
cy  and  danger.  The  tenure  of  his  commiffion  left  no  room  for 
apprehenlion,  from  the  difpleafure  of  the  executive  department. 
The  behavior  of  a  judge,  fitting  and  aefting  in  court  as  a  judge, 
is  not  a  fubjedl  for  animadverfion  in  the  ordinary  courts  of  juf- 
1 -t-'  And,  hence,  it  neccflanly  follows,  that,  even  at  the  mo- 
nent  of  tranfgreffion,  he  contemplated  the  confequeuce  of  be- 


C  ”4  3 1  | 

ing  fummoned  to  anfiver  for  the  offence,  before  this,  the  only 
competent  tribunal. 

Proceeding  to  the  afternoon,  it  muft  be  remarked,  that  much 
has  been  anticipated,  which  more  particularly  belonged  to  this 
itage  ot  the  tranfadlion  ;  nor,  can  I  ever  regard  the  occurren¬ 
ces  of  the  afternoon,  as  conftituting  the  offence,  but  only  as 
aggravating  its  enormity.  The  acquiefence  of  Mr.  M‘DoweJ 
in  Mr.  Addifon’s  opinion,  againft  the  right  of  Mr.  Lucas  to 
addrefs  the  grand  jury,  does  not  lefl'on  the  offence  of  Mr.  Ad- 
difon,  though  it  may  criminate  Mr.  M‘Dowel.  It  is  not  the 
hat  of  one  judge,  nor  of  a  majority  of  the  judges,  that  can 
annihilate  the  official  right  of  any  individual  member  of  the 
bench,  as  appears  from  the  authority  cited  yefterday.  (2  Bac. 
ab.  p.  97  of  the  laft  edition.) 

I  agree,  that  the  majority  decide  for  the  whole  ;  but  I  con¬ 
tend  that  they  do  not  think  for  the  whole.  I  agree,  that  the 
prefixing  judge  is  the  proper  organ  of  the  court,  to  exprefs  the 
opinion  of  the  court  ;  but,  1  contend,  that  every  member  of 
the  court  is  the  proper  organ  to  exprefs  his  own  opinion.  How 
Hands  the  cafe  in  the  legiflature  ;  where,  by  the  bye,  it  would, 
at  leaft,  be  as  inconvenient  for  every  one  to  fpeak,  as  it  would 
be  for  every  member  of  a  court  of  juftice  to  detail  the  reaforis 
of  his  opinion.  On  this  point,  you  regulate  the  debate,  but 
you  do  not  deftroy  the  equal  right  of  fpeech.  No  man  can 
fpeak  more  than  twice  on  the  fame  quell  ion,  without  leave  ;  but 
every  man  may  do  as  much.  The  fpeaker,  it  is  true,  announ¬ 
ces  the  decifion  of  the  houfe  ;  but  every  member  who  choofes, 
may  previoully  declare  his  own  fentiments.  What,  however, 
would  be  the  feelings  and  condu6l  of  your  conftituents,  if  aft- 
ing  on  the  principles  of  Mr.  Addifon’s  rule  of  court,  a  majori¬ 
ty  fhould  inveft  the  fpeaker  with  an  inclufive  right  of  difeuffmg 
any  topic  ;  or  fhould  impofe  perpetual  filence  upon  the  minor¬ 
ity  ?  Again  :  The  powers  of  the  chief  juftice  are,  I  prefume, 
as  extenfive  as  the  powers  of  the  preftdent  of  the  court  of 
common  pleas  of  Allegheny  county  ;  and  the  power  of  a 
majority  of  the  bench  of  the  fupreme  court,  cannot  be  infe¬ 
rior  to  the  power  of  a  majority  of  the  bench  of  the  com¬ 
mon  pleas.  Say,  that  the  chief  juftice  were  to'affert  a  claim 
to  addrefs  a  grand  jury,  exclulively,  either  on  his  own  af- 
iumption,  or  on  the  grant  of  a  majority  of  his  brethren, 
what  would  be  the  fenfation  excited  ?  It  is  true,  that  the 
judges  of  the  lupieme  court  are  all  legal  charadlers  ;  but  this 
Hate  of  things  makes  no  difference  between  the  courts,  on 
conftitutional  ground ;  for,  the  circumftaiice  of  the  prefient’s 


£  »s  1 


eing  the  only  legal  character  on  the  bench  of  the  common  pleas 
iay,  and,  perhaps  ought,  in  pra&ice,  to  give  him  fuperior  inf¬ 
luence  ;  but  it  confers  no  fuperiority  of  power,  or  right,  over 
he  affociates. 

With  this  preliminary  flatement,  to  obviate  the  idea,  that 
he  union  of  Mr.  Addifon  and  Mr.  M‘ Dowell  could  more  af- 
e£f  the  official  rights  of  Mr.  Lucas,  than  the  fingle  author- 
ty  of  Mr.  Addifon,  let  us  analyfe  the  faffs  of  the  afternoon, 
t  appears  that  the  court  was  then  opened,  although  it  had 
tot  been  clofed  in  the  morning.  And  1  remarked,  yefter- 
lay,  that  this  irregularity  terminated  the  feffion,  and  that  all 
he  bufinefs  done  afterwards,  was  illegally  done.  As  foon  as 
dr.  Addifon  and  Mr.  Lucas  were  feated,  the  latter,  conft- 
ent  in  his  rights,  propofed  to  fend  for  Mr.  M‘Dowell,  who, 
ccordingly,  attended.  With  deference  and  politenefs,  in  a 
tanner  perfuafive  and  conciliatory,  Mr.  Lucas  communicated 
a  Mr.  M‘Dowell  what  had  paffed  in  the  morning,  and  of* 
;red  for  his  perufal  the  addrefs,  which  he  wiffied  to  deliver 
3  the  grand  jury.  But  the  feene  was  changed.  The  mild 
nd  perfuafive  accents,  which  the  prefident  had  affumed  in  the 
lorning,  were  no  longer  heard.  The  motive,  which  produced 
hem,  had  ceafed.  Mr.  Lucas’  attendance  was  not  then  ef- 
mtial  to  conftitute  a  court  ;  and,  inftead  of  taking  upon  him- 
:lf  a  perfonal  rifk,  the  prefident  could  cloak  himfelf  with  the 
ame  and  fanftion  of  the  court.  No  mutuality  of  refpeft,  or 
(Sod-will,  was  manifefted  towards  Mr.  Lucas.  No  overture 
:as  made  to  recognize,  or  confider,  in  any  form,  or  degree, 
is  claim  of  right,  though  Mr.  Addifon  had  intimated  that  it 
•ould  hand  as  firmly  in  the  afternoon,  as  in  the  morning. 
?he  manner  and  language  of  the  prefident,  became  bold,  boi- 
erous,  and  peremptory.  His  will  had  been  the  law  of  the 
lorning  :  his  will  was  equally  the  law  of  the  afternoon.  Stat 
ro  ratione  voluntas. 

I  have  reached  that  flage  of  the  difeuffion,  which  calls  for 
3me  caution,  to  prevent  a  departure  from  the  moderation, 
hat  I  have  preferibed  to  myfelf.  We  have  feen  a  judge  de- 
;raded,  and  a  court  violently  diffolved  ;  but,  it  remained,  to 
timulate  an  honeft  indignation,  that  a  magiflrate’s  functions, 
luties,  and  rights,  fhould  be  fuperfeded  and  annihilated,  un- 
ier  the  terrors  of  a  threat,  delivered  in  open  court,  by  his- 
•rethren  of  the  bench  !  The  lumber  of  our  profeffional  Iibra- 
ies  contains,  we  know,  much  abfurdity  ;  but  this  affords  no 
jround  for  refledtion  upon  the  law  itfelf ;  which  is  a  fykem  of 
dined  common  fenfe,  adapted  to  the  various  conditions,  fitu-  - 


[  ii6  ] 

ations,  and  purfuits,  of  mankind.  Thus,  the  difference  of 
time  and  place,  makes  often,  in  law  and  reafon,  an  effentiai 
difference  in  the  delinquency  and  punifhment  of  an  offenfive 
ad.  The  giving  the  lie,  in  a  ftreet,  or  a  tavern,  is  a  breach 
of  good  manners,  and  generally  terminates  in  a  perfonal  ren¬ 
contre  ;  yet,  it  is  not  an  offence  in  the  law  :  but  if  the  fame 
indecorous  exprefiion  is  pronounced,  within  the  precincts  of  a 
court  of  juffice,  its  confequences  are  highly  penal.  A  blow 
given  in  the  highway,  is  a  mere  mifdemeanor  ;  but  if  given  in 
Weftminfter-hall,  it  has  been  regarded  as  a  fpecies  of  treafon. 
Let  us  apply  the  principle  of  this  determination  to  the  prefect 
cafe.  If  a  private  citizen,  in  a  private  room,  were  to  threaten 
a  jU(%e,  f°r  any  part  of  his  condud  in  court,  fuch  a  threat 
all  will  agree,  would  be  greatly  reprehenfible  ;  and,  yet,  how 
venial  it  is,  when  compared  with  the  fad,  that  one  judge  has 
threatened  another  judge,  fitting  on  the  fame  bench,  in  open 
court,  for  an  attempt  to  exercife,  what  is  now  an  acknow¬ 
ledged,  judicial  right  !  State  the  defence  of  Mr.  Addifon,  as 
involving  a  propofition,  that  two  judges  of  the  court,  may 
lawiuily  commit  the  third  judge  to  prifon,  for  attempting  to 
expreis  an  opinion,  on  any  fubjed  before  the  court,  and  what 
mind  can  yield  its  affent  ?  Then,  where  is  the  diffindion,  be- 
twe-n  the  actual  commitment,  which  removes  the  judge  from 
the  bench,  and  the  menace  of  the  commitment,  which  awes 
him  into  hlence,  while  he  remains  there  ?  Hardly  would  it  ap¬ 
pear  a  greater  outrage  to  me,  if  inftead  of  fending  the  judgtf 
to  jail,  or  threatening  to  fend  him  thither,  the  prefident  had 
boldly  ftruck  him  from  his  feat. 

It  is  true,  fir,  that  the  terms  of  the  threat  uttered  by  Mr. 
Addifon,  were  not  exprefsly,  that  he  would  fend  Mr.  Lucas 
to  jsil  ;  blit  tills  was  its  natural  and  neceffary  import.  The 
witneffes  ufe  ^  different  words,  but  they  concur  in  lub fiance, 
that  Mr.  Addifon  ordered  judge  Lucas  to  be  filent,  and  de- 
«  dared,  that,  if  he  did  not  defiff  from  the  attempt  to  fpeak, 

the  court  would  find  means  to  make  him.  What  are  the  co¬ 
ercive  inftruments  of  a  court,  in  any  inftance  of  n  contempt' 
of  its  authority  ?  Fine  and  imprifonment.  It  would  be  a  pi- 
tiful  fubterfuge  to  fay,  that  the  prefident  intended  merely  to 
aired  the  grand  jury  to  withdraw  ;  for,  he  might,  with  equal 
effed,  have  done  fo  in  the  morning  ;  and,  certainly,  if  no¬ 
thing  more  was  intended,  he  might  then  have  given  the  di- 
ledion  at  once,  without  the  addition  of  the  threat.  The 
pride,^  if  not  the  candor,  of  the  defendant,  will  prevent  his 
relorting  to  fo  palpable  an  evafion.  Nor,  will  it  anfwer  hi? 


[  H7  ] 


purpofe  to  allege,  that  he  meant  to  coerce  Mr.  Lucas  by  the 
impofition  of  a  fine  only,  would  be  as  unlawful,  as  a  commitment 
to  prifon  ;  and  the  means  would  not  be  fuited  to  the  end  ; 
fince  a  fine  might  operate  as  a  punifhment  for  fpeaking,  but 
could  not  operate  as  a  gag  to  make  him  hold  his  tongue.  The 
commitment  to  jail,  therefore,  was  the  threat  :  Such  was  the 
interpretation  of  the  words,  in  the  mind  of  judge  Lucas  ; 
and  the  effeft,  upon  his  conduct,  was  in  perfect  correfpondence 
with  it.  He  funk,  mortified,  dejected,  and  confufed,  upon 
his  feat.  He  paufed  for  a  moment’s  refledftion  and  felf  collec¬ 
tion.  He  trembled  at  the  difgraceful  and  injurious  conflict, 
which  muft  inevitably  enfue,  if  he  longer  aflerted  his  rights. 
He  faw  his  character  and  ufefulnefs,  as  a  judge,  completely 
deftroyed.  With  fhame  and  affliction  he  retired  from  the 
court :  And  the  bench  and  the  bar,  the  jury  and  the  audi¬ 
tors,  united  in  a  laugh  of  triumph,  a  farcaftic  fmile,  “  in 
which  (fays  Mr.  Gazzam)  I  was  forry  to  obferve,  the  prefi- 
dent  take  a  confpicuous  part.” 

Here  we  have  attained  the  fummit  of  the  charge,  and  look 
down,  with  aftonifhment  and  difguil,  at  the  fcene,  through 
which  it  has  been  neceflary  to  pafs.  As  it  refpeCts  the  pub¬ 
lic,  the  principles  of  the  conftitution,  the  provifions  of  the 
law,  and  the  maxims  of  jullice  and  decorum,  have  been  vio¬ 
lated.  As  it  refpe&s  the  injured  individual,  the  treatment  has 
been  tyrannical,  oppreffive,  arbitrary,  and  cruel.  If  fuch  con¬ 
duct  does  not  conftitute  a  high  mifdemeanor  in  office,  I  am  at 
a  lofs  for  any  rational  definition  of  official  delinquency.  Con- 
fider,  fir,  not  only  the  aCtual  outrage,  that  has  been  .com¬ 
mitted,  but  the  confequences  of  the  precedent,  fanCfioned  by 
an  acquittal  of  the  defendant.  The  complaints  of  Mr.  Lu¬ 
cas,  the  memorials  of  the  indignant  inhabitants  of  the  weft- 
ern  counties,  however  juft,  and  however  animated,  are  of  lit¬ 
tle  moment,  compared  with  the  influence  of  this  day’s  pro¬ 
ceedings,  upon  the  future  adminiftration  of  juftice.  Declare 
that  the  defendant  is  not  guilty,  and  you  announce  to  the 
world,  and  to  pofterity,  that,  on  the  principles  of  our  govern¬ 
ment,  an  aflociate  judge  is  a  cypher  on  the  bench,  with  the 
power  to  think,  but  without  the  right  to  fpeak,  that  a  ma¬ 
jority  of  the  judges  of  any  court,  may  form  agreements,  or 
rules,  to  annihilate  the  fun&ions,  and  privileges,  of  the  mi¬ 
nority  ;  that  the  prefident  may  claim  and  enjoy  a  monopoly  of 
opinion  and  difcuffion,  on  whatever  he  ftiall  pleafe  to  call  extrane¬ 
ous  topics ,  in  open  court ;  and  that  he  may  enforce  that  monopoly 
by  every  poffible  art,  or  violence  ;  by  a  disorderly  diflolution 

Qj 


t  118  ] 


of  the  court,  by  menaces  of  perfonal  indignity,  or  by  the  ar¬ 
bitrary  imprifonment  of  an  affociate  judge.  Are  the  fenate 
prepared  to  authorife  fuch  inferences  from  their  decifion,  upon 
theprefent  occafion  ?  No:  We  appeal  not  to  their  paffions, 
or  their  prejudices;  but,  relying  implicitly  upon  their  wifdom, 
impartiality,  and  independence,  we  afk  for  juftice  to  their 
country,  to  pofterity,  and  to  themfelves.  The  houfe  of  re- 
prefentatives  have  faithfully  difcharged  their  duty,  in  exhibit¬ 
ing  the  articles  of  impeachment  :  It  remains,  for  the  fenate, 
to  fet  an  important  example  to  every  grade  of  public  officers, 
warning  them  againft  the  ufurpation  of  unconftitutiona!  pow¬ 
ers,  or  the  perpetration  of  arbitrary  and  oppreffive  a£ts.  And 
the  force  of  the  lelfon  will  not  be  diminiffied,  when  it  is 
found,  that  the  conftitutional  independence  of  the  judicial  of¬ 
fice,  affords  no  hope  of  impunity,  in  the  cafe  of  a  magiftrate, 
who  ffiall  wilfully  abufe  his  public  truft. 

3.  The  third  proportion,  to  which  the  attention  of  the  fe¬ 
nate  is  now  to  be  dire&ed,  affirms,  that  for  the  mifdemeanor 
committed  by  Mr.  Addifon,  an  impeachment  is  the  appropriate 
ecu  -fe  of  proceeding. 

The  firft  principle  of  our  conftitution  eftabliffies  the  great 
departments  of  governments,  legiflative,  executive  and  judicial, 
upon  difiindl  and  feparate  foundations  ;  and  the  operation  of 
that  principle,  has,  naturally,  introduced  the  exifting  modifica¬ 
tion  of  the  power  of  impeachment.  In  England  (whence  we 
derive  our  general  notions  of  politics  and  law,)  the  attributes 
of  the  executive  are  or  fo  indefinite,  fo  paramount  a  character, 
and  the  influence  of  the  ariftocratieal,  or  privileged  orders  is 
fo  expenfive,  that  to  refeue  the  nation  from  great  delinquents, 
enjoying  the  favor  of  the  crown,  or  the  immunities  of  heredi¬ 
tary  rank,  it  was  effential  that  the  policy  of  impeachment, 
f  .odd  extend  to  every  fubjedt,  every  offence,  and  every  punifh- 
ment.  But  here  the  limited  and  definite  authority  of  the  exe¬ 
cutive,  and  the  equal  rights  of  the  people,  prefent  no  occafion 
to  apprehend  a  fimilar  evil ;  every  public  officer  is  as  refponfible, 
as  any  private  citizen,  to  the  ordinary  procefs  of  the  penal  law  ; 
arid,  co  .iecuemily,  the  conftitutional  organization  of  the  de¬ 
partments  of  the  government  only  requires,  that  the  power  of 
impeachment  fhou'd  apply  to  public  officers,  for  official  offen¬ 
ces,  by  an  Immediate  removal  and  perpetual  difqualification.  To 
preierve  the  executive  power  of  appointment  and  removal,  frorp 
the  encroachments  of  the  judicial  department,  it  is  proper  to. 
reftrain  the  ordinary  tribunals  of  juftice,  from  affedhng,  in  any 
degree,  the  tenure  of  office,  by  a  judicial  fentence.  To  pre~ 


[  n$>  !i 

ierve  the  independence  of  the  judicial  department,  both  with 
relation  to  the  legifiative  and  executive  departments,  it  is  proper 
to  confer  upon  the  judges  a  commifiion  during  good  behavior. 
But,  left  the  commonwealth  Ihould  fuffer,  either  from  the  fa- 
voritifm  of  the  executive,  in  retaining  a  civil  officer,  whom  he 
might  difmifs  ;  or  from  the  mifconduft  of  a  judicial  officer, 
whom  he  cannot  remove  ;  this  high  fuperintending,  and  impar¬ 
tial,  tribunal  is  happily  inftituted.  Through  the  medium  of 
this  court,  a  falutary  check  is  impofed  upon  the  general  autho¬ 
rity  of  the  executive  department,  in  the  bufmefs  of  appoint¬ 
ments  ;  and  a  qualification  is  affixed  to  the  independence  of  the 
judges,  calculated  rather  to  advance,  than  to  obftrudt,  the  poli¬ 
cy,  which  ordains  the  peculiar  tenure  of  their  commiffions. 

The  third  fedtion  of  the  fourth  article  of  the  conftitution, 
provides,  that  “  the  governor,  and  all  other  civil  officers,  under 

this  commonwealth,  ftiall  be  liable  to  impeachment,  for  any 
**  mf demeanor  in  office.”  The  fubjedt  of  impeachment  is  any 
mifdemeanor  in  office.  The  provifion,  therefore,  comprehends 
every  offence,  within  the  indefinite  claffification  of  a  mifde¬ 
meanor,  whether  of  the  loweft,  or  of  the  higheft  degree,  in  the 
fcale  of  delinquency  ;  and  it  embraces,  equally,  thofe  cafes  of 
official  mifeondudt,  which  may,  alfo,  be  prdfecuted  by  indidi- 
ment,  or  information,  and  thofe  cafes,  which  are  only  cogniza¬ 
ble  m  a  courfe  of  impeachment.  For  inftance,  every  fpecies  cf^ 
diredf  corruption  committed  by  a  judge,  whether  off,  or  on  the 
bench,  would  furnifh  occasion  for  an  indictment  to  pimifh  the 
offence,  as  well  as  for  an  impeachment  to  remove  the  offender  : 
But,  for  the  arbitrary  deportment,  the  oppreffive  conduct  of  a 
magiftrate  in  court,  adding  as  a  judge  (it  1ms  been  already 
ffiewn)  the  ordinary  tribunals  can  afford  no  redrefs.  The  juri¬ 
dical  hifeory  exhibits  a  great  variety  of  both  of  thefe  deferip- 
tions  of  offences.  Lord  Bacon ,  who  has  been  well  character] f- 
ed  by  the  moral  poet,  as  “  the  greateft,  meaneft,  of  mankind,” 
is  a  memorable  example  of  the  bafe  and  fordid  corruption  of 
money.  Yet,  covetoufnefs  is  not  fo  dangerous  a  vice  in  a 
judge,  as  ambition,  or  party  fpirit.  A  bribe  proves  the  turpi¬ 
tude  of  the  man,  who  gives,  or  who  accepts,  it  ;  but  its  taint 
feldom  extends  further  ;  while  the  ambition  and  party  zeal  of  a 
judge,  not  only  incapacitate  him,  for  the  difenarge  of  his  du¬ 
ties,  but  are  adtive  in  difturbing  the  repofe,  and  harmony  of  fo- 
ciety.  With  all  the  moral  defection  of  lord  Bacon  and  lord 
Macclesfield,  they  never  did,  nor  could  produce  fo  much  private 
diforder,  and  fo  much  public  wrong,  as  the  judicial  aberrations 
of  the  afpiring  party-heated,  Trefilian,  Jeffries  and  ocroggs.  In 


£  12°  1 

the  ledtures  of  Mr.  Wooddefon,  you  will  find  the  only  fyftematic* 
eflay  on  the  law  of  parliamentary  impeachments  ;  2  Wooddes.  596 
and'  Comyn's  Digejl  furnilhes  a  catalogue  of  the  principal  cafes 
that  have  occurred  :  Tit.  parliament  letter  L.  But  let  me  par¬ 
ticularly  point  the  attention  of  the  fenate,  to  the  impeachment 
of  lord  C.  J.  Scroggs,  as  reported  in  the  Hate  trials.  3  vol.  218. 

-  voi  223.  At  a  period  of  great  party  conteft,  when  Popifh 
plots*  were  as  much  the  bug-bear  of  religious  fa&ions,  as  the 
affiliations  of  the  illuminati,  jacobins  and  democrats  have  fince 
been  of  our  political  fadions  ;  the  non-conformity  of  the  duke 
of  York,  the  prefumptive  heir  to  the  crown,  &  a  great  body  of 
catholic  nobility,  had  raifed  a  hue  and  cry,  throughout  the 
kino-dom.  Lord  C.  J.  Scroggs  heard,  that  the  grand  jury  in¬ 
tended  to  prefent  the  illuftrious  offenders  ;  and,  m  order 
to  avert  the  preferment,  he  difmiffed  the  jury  arbitrarily 
and  abruptly,  before  they  had  compleated  the  bufinefs  of  the 
fefiions.  In  the  impeachment  of  the  chief  juftice,  this  act 
was  charged  as  an  illegal,  arbitrary,  and  high  mifdemeanor, 
a  violation  of  his  oath,  and  the  means  to  fubvert  the  fundamen¬ 
tal  laws  of  the  land.  There  was  in  that  inftance,  no  more  im¬ 
putation  of  a  fordid  corruption,  than  in  the  prefent  inftance  : 
but  there  was  in  that  cafe  lefs  of  an  arbitrary  and  illegal  mterpo- 
fition  to  impede  the  courfe  of  law  and  juftice  ;  for,  not  only  did 
Mr.  Addifon  arbitrarily  difmifs  a  grand  jury,  but  he  alio  drove 
a  iudo-e  from  the  bench,  and  of  his  mere  will  and  pleafure,  or 
rather&  paffiou,  and  diffolved  a  court  of  juftice.  But  as  the 
chief  iuftice  Scroggs,  and  Mr.  Addifon,  both,  adled  as  judges 
in  court,  the  ordinary  tribunals  could  not  arraign,  or  pumlh^ 
their  mifconduft  ;  and  the  procefs  of  impeachment  was  mdif- 
penfable  to  the  purpofes  of  juftice.  2  Bac.  abr.  97. 

Let  it,  however,  be  fuppofed  that  fuch  mifdemeanors  could 
be  profecuted  and  puniftied  at  common  law,  it  would  ftill  be 
expedient  to  mftitute  the  piefent  impeachment.  A  judge, 
who  is  capable  .ff  adding,  in  a  manner  fo  inconiiilent  with  his 
duty,  and  fo  injurious  to  the  public  interefts,  manifeks  to  every 
department  of  the  government  his  unfitnefs  for  his  ftation, 
and  each  department  of  the  government  is  bound  to  contn- 
bute,  with  ail  its  authority,  to  his  removal  :  but  a  delinquent 
iudo-e  can  only  be  certainly  removed  by  a  legiflative  impeach¬ 
ment.  Again  :  It  is  only  by  a  fentence  on  the  impeach¬ 
ment,  that  the  people  can  be  fecured  from  the  re-appointment 
of  the  delinquent  judge  ;  fince,  in  no  other  way,  can  perpe¬ 
tual  difquahfication  be  inflicled. 

Here,  indeed,  it  may  be  propel  to  notice  another  conftitu- 
tional  provilion,  which,  it  has  been  iometimes  thought,  wouid 


I 


[  121  ] 


afford  a  competent  redrefs,  for  the  prefent  grievance.  The 
fecond  feaion  of  the  fifth  article  declares,  that  the  judges  of 
the  fupreme  court,  and  of  the  feveral  courts  of  common  pleas, 
«  for  any  reafonable  caufe,  which  lhall  not  be  fufficient  ground 
of  impeachment,  may  be  removed  by  the  governor,  on  the 
addrefs  of  two  thirds  of  each  branch  of  the  legifiature.  In¬ 
dependent  of  many  reafonable  caufes  for  removal,  which  would 
call  for  compaffion,  inftead  of  punilhment,  as  old  age,  acci¬ 
dental  incapacity,  &c.  to  which  this  provifion  particularly  ap¬ 
plies  •  it  is  to  be  confidered  that  before  that  courfe  is  pur¬ 
sued  ’  it  mull  be  decided,  that  fuch  conduft  as  Mr.  Addifon’s, 
is  not  a  fufficient  caufe  for  impeachment.  If  it  is  deemed  a  Ef¬ 
ficient  caufe  for  impeachment,  the  legifiature  cannot  adopt  the 
alternative  of  an  addrefs  to  the  governor.  It  is  not  alferted, 
that  the  langurge  of  the  conllitution  is  mandatory;  fo  that 
every  mifdemeanor  in  office  mujl  be  purfued  by  impeachment  ; 
and  there  are,  doubtlefs,  many  flight  mifdemeanors,  which 
would  not  juftify  a  form  of  inveftigation  and  ammadverfion, 
fo  folemn,  and  fo  expenfive.  But  the  conllitution  Amply  de¬ 
clares,  that  every  civil  officer,  for  every  mifdemeanor  in  of¬ 
fice  (hall  be  liable  to  an  impeachment  ;  leaving  it  to  the  dif- 
cretion  of  the  houfe  of  reprefentatives,  to  difcriminate  be¬ 
tween  the  cafes  proper  for  impeachment,  and  the  cafes  that  re¬ 
quire  only  an  addrefs  :  between  thofe  cafes,  in  which  they 
will  exercife  their  own  abfolute  power,  and  thofe  on  which  they 
will  appeal  to  the  power  of  the  executive,  who  may,  or  may 
not,  acquiefce  in  the  application.  Befides,  therefore,  the  con- 
fiderations,  that  have  bt  en  already  urged,  the  ienate  muff 
perceive,  that  the  alternative  of  an  addrefs  ceafed  to  exift, 
and  the  prefent  trial  became  the  appropriate  and  exclufive 
courfe  of  proceeding,  the  moment  the  houfe  of  reprefenta¬ 
tives  decided  (and  how  could  they  otherwife  decide)  that  Mr. 
Addifon’s  mifeonduft  in  office,  was  fufficient  ground  of  im- 


peachment. 

One  word,  fir,  upon  the  nature  and  extent  of  the  puniih- 
ment  which  you  are  authorifed  to  inflift,  if  the  defendant 
(hall  be  convifted.  It  is  declared,  that  “  judgment,  in  cafes 
of  impeachment,  (hall  not  extend  further  than  removal  from 
office,  and  difqualification  to  hold  any  office  of  honor,  truft, 
or  profit,  under  this  commonwealth.”  The  terms  of  this  pro¬ 
vifion  obvioufly  amount  to  a  limitation,  and  not  to  a  grant,  of 
power.  If  there  had  been  no  reftriaive  claufe,  the  fenatc 
mi<rht*have  infixed  the  higheft  pains  and  penalties,  the  whole 
extent  of  the  common  law  punilhment,  upon  an  offender  ;  and 
the  fubfequent  provifion,  that  “  the  party,  whether  conviaed, 


% 


C  122  1 

er  acquitted,  upon  impeachment,  fhall  nevertheiefs  he  liable 
to  indictment,  trial,  judgment,  and  punifnment,  according  to 
law,”  would  be  a  direft  recognition  of  a  right,  to  punifh  a 
man  twice,  for  the  fame  offence.  But  the  negative  words  im¬ 
ply  an  affirmative,  that  although  you  cannot  go  beyond,  you 
will  not  go  to  the  extent,  of  your  authority.  It  is  true,  that 
the  expreffion  conne&s,  by  the  copulative  “  and,”  the  re¬ 
moval  from  office,  with,  the  difquaiification  to  hold  any  of¬ 
fice  but  the  expreffion  is  governed  and  explained,  by  the  mo¬ 
tive  m  ufing  it,  which  was  merely  to  defignate  the  extreme  of 
the  fentence  to  be  pronounced  cn  a  conviction  ;  and  the  dif- 
JunCtive  “  or,”  could  not  have  been  there  fubftituted,  upon 
any  principle  of  grammar,  or  common  fenfe.  It  is,  with  feme 
variance  of  phrafeology,  nothing  more,  than  the  ordinary 
claufe  in  a  penal  ftatute  ;  which  empowers  the  court  to  im¬ 
pose  a  line,  not  exceeding  a  fpecffic  fum,  or  to  order  an  inv 
prifonment,  not  exceeding  a  limited  period,  beyond  which  the 
court  cannot  punifh,  but  certainly  they  are  not  bound  to  pu¬ 
nifh  fo  far. 

Every  principle  of  juflice  is  in  unifon  with  this  conftruc* 
tion*  An  impeachment  lies  for  any,  and  for  every,  mifde- 
meanor  in  office  :  but  there  is  a  vail  difference  in  their  de¬ 
grees  of  guilt  ;  and  it  would  confound  all  our  ideas  of  dis¬ 
tributive  juftice,  to  fay,  that  there  ffiould  be  no  apportionment 
of  punifnment,  to  the  heinoufnefs  of  the  crime  ;  in  a  cafe, 
too,  where  the  attribute  of  mercy  cannot  operate,  as  in  the 
ordinary  cafes  of  punifnment.  Befides,  feme  aftions  may 
prove  a  man  to  be  unfit  for  a  particular  office,  and  yet  by  no 
means  prove  a  general  difquaiification  for  the  public  fervice. 
For  inftance,  an  ambitious  and  tyrannical  difpofition,  will  make 
a  bad  judge  ;  but  might  not  be  incompatible  with  the  com¬ 
mand  of  a  garrifon  ;  and  it  would  be  indifereet  to  difqualky 
fuch  a  judge,  from  hereafter  accepting  a  commiffion  in  the 
army. 

It  appears,  then,  fir,  that  the  lenatc  poffefs  a  diferetion  to 
apportion  tne  punifhment  (as  far  as  they  can  punifh)  to  the  de¬ 
gree  of  the  offence  ;  and  may  if  they  pleafe  modify  their  fen¬ 
tence,  either  to  a  fimple  removal,  or  to  a  removal  and  a  difqua- 
dfication  fiom  holding  any  judicial  office,  under  this  common¬ 
wealth.  But  even  n  no  fuch  exercife  of  diferetion  were  per¬ 
mitted,  the  feverity  of  the  punifhment  cannot  be  a  reafon,  for 
affording  impunity  to  the  offence.  The  fenate,  a&in  g  in  their 
ftation  of  high  refpenfioility,  muff  decide  upon  the  conffitution, 
the  law,  and  the  evidence,  whether  Mr.  Addifon  has  been  guilt 


ty  of  a  mifdemeanor  in  office,  without  regard  to  the  c-onfe- 
quences  of  the  decifion.  Flat  jujlitia ,  ruat  ccelum  ! 

That  this  honorable  court  will  do  juftice  between  the  ftate  and 
the  defendant,  is  the  expectation  and  the  wifh  of  every  candid 
and  generous  mind.  For  my  own  part,  I  hope  that  I  have  faid 
nothing,  which  does  not  naturally  belong  to  the  caufe ;  and  I 
pray  that  every  thing  that  I  have  faid,  may  be  applied  as  a  com¬ 
mentary  upon  the  charges  and  the  proofs,  and  not  as  a  perfonal 
attack  upon  the  fame,  or  the  fortunes,  of  Mr.  Addifon.  Nay, 
fir,  I  will  conclude  (gratefully  impreffed  with  the  patience  and 
attention  of  the  fenate,)  under  this  folemn  affurance,  that  an 
acquittal  would  be  infinitely  more  pleafing  to  my  feelings,  than 
a  conviftion,  if  you,  his  honorable  and  upright  judges,  can 
contemplate,  in  that  acquittal,  a  vindication  of  the  violated  ho¬ 
nor  of  the  commonwealth. 

\_Here  Mr.  Dallas  concluded  :  Mr.  Addifon  requejled  till  the  next 
day  to  prepare  himfelf  to  proceed  in  his  defence ,  ‘which  was  granted, 
md  he  delivered  himfelf  as  follows 


NOTE. 


‘The  public  are  rcfpe&fully  informed ,  that  in  order  to  expedite 
this  work,  it  became  neceffary  to  divide  it  :  that  that  part  of  the 
work,  beginning  with  Mr.  Addifony s  defence ,  p.  ioi,  was  fet  up  at 
the  fame  time  as  the  tejlimony ,  apprehending ,  from  a  view  of  the 
matter ,  that  the  paging  would  correfpond  ;  but  as  the  preceding 
part  of  the  work  exceeded  the  calculation ,  it  has  occcfioned  fever al 
pages  to  be  doubled ,  or  twice  numbered ;  which  has  rendered  this 
explanation  neceffary  ;  but  does  not  render  the  work  lefs  perfeft . 


c  *101  ] 

Mr,  Speaker ,  and 
Gentlemen  of  the  Senate , 

IT  is  now  towards  twelve  years,  fince  I  was  appointed 
President  of  the  courts  of  Common  P’eas  of  the  Fifth  Cir¬ 
cuit  of  the  date  of  Pennfylvania.  This  appointment,  though, 
when  fir  ft  fuggefted,  altogether  unlooked  for  by  me,  I  ac¬ 
cepted  with  chearfulnels  :  becaufe  I  thought  it  accorded 
with  the  willies  of  the  gentlemen  of  the  bar,  and  of  the 
people  in  general  ;  and  becaufe  I  thought  I  was  not  alto¬ 
gether  defhtute  of  capacity,  and  knevv  I  po{felfed  a  very 
zealous  difpofition,  to  be  ufeful  in  it.  In  none  of  thefe 
motives  have  I  any  difappointment  to  regret.  The  favour¬ 
able  opinion,  indulgently  entertained  of  me,  experience  has 
ripened  into  a  confidence.  In  a  mixed  fociety,  of  characters 
of  all  delcriptions,  purluit  of  univerfal  approbation  is  fruit- 
lefs.  and  ineffectual  as  the  chace  of  the  rainbow.  I  have 
limited  my  ambition  to  the  approbation  of  the  wife  and 
the  good  ;  and,  in  this,  I  humbly  hope,  I  have  not  been  un- 
fuccelsful.  I  have  endeavoured  to  be,  what  every  magiftrate 
ought  to  be,  “  for  the  punilhment  of  evil  doers,  and  for 
the  praiie  of  them  that  do  well”;  and  viewing  popularity  as 
but  a  fecondary  oojeCt,  and,  when  acquired,  as  it  too  often 
is,  by  unworthy  means,  a  contemptible  objed  ;  I  have  la¬ 
boured  to  be  ufeful.  For  five  years  and  till  a  new  county, 
no  part  of  which  was  within  its  original  jurifdidlion,  was  an¬ 
nexed  to^  the  Fifth  Circuit,  I  never  was  abfent  from  any 
court,  a  Tingle  day,  nor  a  fingle  hour  in  any  day.  I  omitted 
no  pains  to  qualify  myfelf  for  a  ufeful  difeharge  of  the  duties 
of  my  office  ;  and  J  have  difeharged  them  without  any  re¬ 
gard  to  favour  or  refentment.  Every  one  who  knows  any 
thing  of  the  confufion,  in  which  the  buGnefs  ol  che  County 
Courts  was,  while  thofe  Court-:  were  held  by  Juflices  of  the 
peace,  (and  L  blame  not  them  ;  for  how  could  it  be  other- 
wile  ?)  of  the great  delay  and  growing  accumulation  offuits  ; 
muft  know,  that,  to  reduce  this  confufion  to  order,  and  to 
bring  in  a  iyllem,  at  the  fame  time,  correct  and  expeditious, 
was.  no  ealy  talk.  Iu  the  counties  of  the  Fifth  Circuit, 
at  the  we  Item  extremity  of  the  (late,  lefs  improved  by  the 
example  of  the  Judges  of  the  fupreme  Court,  the  evil  muft 
ha\e  been  greater,  and  the  correction  more  difficult.  But 
there  I  tane  upon  me  to  fay  this  evil  has  been  as  com- 
piCatiy  corrected  as  in  any  other  part  of  the  Gate.  That 
;  ^ave  often  erred,  is  not  only  poffible,  but  natural  ; 

for  it  is  the  lot  of  man.  But  I  humbly  prefume  it  is  believed, 
that,  in  no  Court  oi  Pennfylvania,  has  bufmefs  been  con¬ 
duced  with  more  regularity  and  difpatch,  or  decifions  been 

O 


mere  fatisfa&ory,  than  in  the  Courts  of  the  Fifth  Circuit! 
A  gentleman,  cf  whofe  praife  even  a  preud  man  may  be 
vain,  handed  me  the  following  note  “  During  the  twelve 
years  of  your  prefidency  there  has  been  no  Bill  of  Excep¬ 
tions*  no  Writ  of  Error  on  a  Demurrer  or  cafe  put  upon 
the  record  ;  no  fecond  Ejeftment  except  in  two  inffances, 
(one  of  which  has  been  affirmed  and  the  other  not  yet  tried  ;) 
though  on  an  average  more  than  forty  Ejeftments  are  tried 
every  year.  Perhaps  this  evidence  of  confidence  in  the  opi¬ 
nions  of  the  Court  cannot  be  found  in  any  other  part  of 
Pennfylvania,  of  the  United  States,  or  of  any  other  eountry. 
It  ipeaks  louder  than  any  other  encomium  ;  becaufe  it  will 
not  be  denied  that  at  the  Bar  we  have  men  capable,  in¬ 
dependent  and  willing  to  appeal  and  try  another  tribunal*, 
if  they  believed  that  fuccefs  would  follow  the  appeal.” 

Without  averting  that  this  flatement  is  altogether  cor- 
reft,  I  may  fairly  rely  on  it  as  the  opinion  of  a  man,  than 
whom  no  man  is  better  acquainted  with  the  bufinefs  of 
the  law  in  the  Fifth  Circuit  or  generally.  If,  in  fpeak- 
ing  thus  of  mvfelf,  I  ffiall  be  thought  to  have  become 
a  fool  in  boafiing,”  I  can  fay  with  St.  Paul,  I  have  been 
compelled  to  it. 

Honeflly  entertaining  thefe  ientiments,  which  I  am  now 
obliged  frankly  to  avow,  of  my  official  conduct  ,  and,  after 
a  careful  review,  folemnly  declaring,  that  I  can  lee  noth¬ 
ing  in  it  worthy  of  blame  ;  nothing,  which,  on  deliberation, 
I  would  not  again  do  ;  I  cannot  but  look  with  afloniffiraent 
at  my  prefent  ftuation,  Handing  as  an  offender  at  the  bar 
of  this  Senate,  and  having  my  name  publiffied  to  the  world 
as  that  of  one  guilty  of  a  miidemeanor  in  an  important  pub¬ 
lic  office.  In  a  fuuation  lb  unpleafant,  as  to  a  man  of  any 
lenfibility  this  muff  be,  I  find  confolaticn  in  looking  over 
this  paper,  containing  the  Articles  of  Impeachment  to  which 
1  am  to  anfwer.  For,  in  it,  I  can  fee  no  ffiadew  of  cor- 
i  uption  ,cr  dishonefly,  no  fpark  of  ulurpation  or  abufe  of 
authority,  no  fign  even  of  ignorance  or  mi  flake  ;  nothing  in 
which  I  do  not  deferve  praife,  inflead  of  blame.  It  is  in¬ 
deed  a  proud  thing  for  me,  that  after  a  ferutiny  cf  my  of¬ 
ficial  conduct  for  twelve  years,  in  order  to  find  a  fault,  my 
enemies,  who  have  inffigated  the  Houfe  of  Reprefentatives 
to  this  pvol'ecution,  are  compelled  to  aferibe  falfe  motives 
to  proper  aftiens,  and  can  difeover  an  offence,  not  in  my  con- 
tiuft,  but  in  their  own  malicious  imagination.  For  it  is 
not  my  guilt,  but  their  malignity,  which  io  apparent  cn 
this  record. 


[  103  ] 


Mifdemeanor  in  a  public  office  is  a  public  offence  ;  for  it 
is  an  injury  to  the  public,  Every  public  offence  is  in¬ 
dictable.  Mifdcmeanor  in  a  public  office  is  impeachable  : 
for  every  civil  officer  is  impeachable  for  mifdemeanor  in 
office.  Every  civil  officer  is,  for  mifdemeanor  in  office, 
liable ’to  profecutions  of  two  kinds;  by  Indictment  and  by 
Impeachment.  Either  mode  of  profecution  of  an  ‘officer  fup- 
pofes  the  fame  offence  ;  and  nothing  can  be  an  offence  on. 
Impeachment,  which  would  not  be  an  offence  on  Indictment  ; 
nor  is  a  convidtion  or  acquittal  on  Impeachment  any  bar 
to  Indidlment  for  the  fame  offence.  Every  offence  includes, 
with  an  unlawful  adl,  an  evil  intention  :  for  it  would  ba 
abfurd  to  punifli,  where  the  mind  is  not  guilty.  But  an 
evil  intention  alone  will  not,  before  an  human  tribunal, 
conffitute  an  offence.  That  alone  is  cognizable  only  be- 
'fore  the  tribunal  of  God.  To  give  man  jurifdidtion  of  it, 
an  unlawful  adl  muff  accompany  it.  The  Adi  muff  be 
plainly  unlawful,  either  evil  in  itfelf,  or  forbidden  by  law  ; 
or  it  cannot  be  an  offence  :  for  it  would  be  abfurd  to  punifh 
an  adl  not  plainly  unlawful  ;  and  every  man  is  free  to  do 
what  no  law  forbids.  Ufurpation,  trail  fgre ffion,  or  abufe 
of  public  authority,  is  forbidden  by  law.  When  an  officer 
exerciles  more  power  than  the  law  gives  him,  exceeds 
the  bounds  of  his  authority,  or  abufes  his  authority  to  impro¬ 
per  purpofes,  he  does  an  unlawful  adl.  But  to  make  this  un¬ 
lawful  adl  an  offence,  a  proper  objedt  of  punifhment,  it  muff 
appear,  from  the  nature  of  the  act  itfelf,  or  from  fome  other 
iigns,  that  he  muff  have  known  it  to  be  unlawful,  and  did  it 
with  an  evil  intent.  For  cruel  would  be  the  fituation  of  of¬ 
ficers,  and  cruel  would  be  the  fituation  of  citizens,  if,  for 
every  unlawful  adl  arifing  from  miffake  or  accident  they 
were  to  be  confidered  as  fubjedls  of  punifhment  !  It  is  no  an- 
fvver  to  this,  that  the  punifhment  on  Impeachment  cannot 
exceed  removal  from  office,  or  difqualiffcation  to  hold  any 
office  :  for,  as  no  Impeachment  will  lie,  but  for  a  mifdemean¬ 
or  in  office,  and  every  mifdemeanor  in  office  is  indictable,  ths 
officer  impeached  ff ill  remains  liable  to  indidlment,  trial, 
judgement  and  punilhment  according  to  law.*  An  Impeach¬ 
ment  lies  only  where  an  Indidlment  lies  j  no  officer  can  be 
convnfled  on  an  Impeachment,  w’ho  ought  not  to  he  con¬ 
victed  on  an  Indidlment  ;  and  the  puniffunent  on  Impeach¬ 
ment  is  cumulative  not  excluffife. 

The  acts  for  which  an  officer  may  he  impeached,  are 
preciftly  thofe  for  which  lie  may  be  indicted  as  an  officer  ; 
jnifdemeanors  in  office,  offences  or  unlawful  -acts  done  with 

*  Const ,  Art,  iv.  Sect,  3. 


[  104  ] 


an  evil  intention,  in  his  official  capacity.  For  fuch  only 
can  he  be  convicted  as  an  officer  on  an  Indi&ment ;  and  for 
fuch  only  can  he  be  convicted  on  an  Impeachment.  And 
no  officer  can  be  convicted  on  an  Impeachment,  unlefs,  on 
the  fame  charge,  and  on  the  fame  evidence,  he  ought  to 
be  convicted  on  an  Indictment.  The  ground  of  both  is  an 
unlawful  a£t  with  an  evil  intention.  Impeachment  is  Indict¬ 
ment  in  other  form,  adopted  in  England  for  great  offenders, 
ivhofe  influence  might  defeat  the  juflice  of  the  ordinary  tri¬ 
bunals,  and  retained  in  Pennfylvania,  either  from  fimilar  mo¬ 
tives,  or  from  imitation.  The  Houle  of  Reprefentatives  is 
the  Grand  Inqueft,  which  finds  the  Indictment  ;  and  the 
Senate  is  the  Traverfe  Jury  and  the  Court  which  tries  the 
truth  of  it  and  gives  judgement.  But  here,  as  in  the  ordinary 
courts  of  juftice,  the  officer  impeached  is  conlidered  as  an 
offender  ;  and.  if  it  cannot  be  proved  that  he  has  done  an 
unlawful  act  with  an  evil  intention,  he  muft  be  acquitted  here, 
as  he  would  be  acquitted  in  the  ordinary  Courts.  On  the 
queflion  whether  guilty  or  not,  the  degree  of  punifhment  is 
no  proper  confederation.  This  only  comes  in  view  when  guilt 
is  afcertained.  And  it  would  be  a  flrange  and  incongruous 
thing,  if  the  Senate,  becaufe  the  punifhment  which  they  can 
infliCI  may  be  thought  light,  fliould  pronounce  an  officer 
guilty,  when  a  jury,  trying  him  on  the  fame  charge  would 
feel  it  their  duty  to  pronounce  not  guilty.  Why  declare  a 
man  criminal  unlefs  he  be  fo  ! 

If,  “  for  any  reafonable  caufe,  which  fh all  not  be  fuffi- 
cient  ground  of  impeachment”*  an  officer  has  become  in¬ 
competent  for  a  proper  difcharge  of  the  duties  of  his  fiation, 
and  the  public  good  requires  his  removal  ;  there  is  no  ne- 
ceffity,  in  order  to  effect  this,  that  he  fliould  be  held  up  as 
a  criminal.  The  people  can  remove  the  Governor  in  three 
years,  Senators  in  four  years,  and  Reprefentatives  in  one  year. 
Two  thirds  of  either  Houfe  of  Aflembly  may  expel  any  of 
its  own  members,  f  On  the  addrefs  of  two  thirds  of  each 
Houfe,  the  Governor  may  remove  any  of  the  Judges  J  ;  and 
on  the  addrefs  of  both  Houfes,  any  Juflice  of  the  Peace §. 
And  other  officers  are  removed  at  the  diferetion  of  the  Go¬ 
vernor.  Where  removal,  and  not  punifhment,  is  the  end 
in,  view,  impeachment  therefore  is  not  neceffary.  The  end 
of  impeachment  is  punifhment,  and  its  object  is  guilt  :  and 
there  never  ought  to  be  impeachment  where  there  is  not 
guilt  ;  never  but  where  there  is  an  unlawful  act  done  with 
an  evil  intent  :  fault  alone,  without  guilt  is  no  ground  of  im¬ 
peachment. 

*  Const.  Art.  v.  Sect.  2.  f  Clrt.  1.  Sect.  2.  J  Art.  v. 
Sect.  2.  §  Sect.  10. 


[  105  j 

Government  is  ail  abftradl  idea,  its  reality  is  in  its  officers. 
Whatever  be  its  form,  it  is  good  or  bad  in  effect,  as  its  offi¬ 
cers  are  g*ood  or  bad.  To  make  its  officers  good,  and,  in 
eue<5t,  the  Government  good  ;  motives  muft  be  held  out  to 
good  men  to  accept  of  public  ortices.  Highly  as  I  prize 
patriot! fm,  (and  no  man  prizes  it  more  highly)  I  think  it  is 
entertaining  too  flattering  an.  idea  of  fallen  humanity,  to  de¬ 
pend  on  patriotifm  alone  as  the  foie  motive  (though  it  ought 
to  be  the  chief  motive)  for  accepting  and  executing  the  duties 
of  a  public  office.  Private  in  ter  ell  ought  to  be  united  with 
public  duty,  and  honour  and  reward  attepd  on  public  emplo- 
ment.  Some  (lability  ought  to  be  given  to  the  tenure  or  pub¬ 
lic  office.  In  the  calm  of  profperity,  it  is  not  to  be  expect¬ 
ed,  that  the  purfuits  of  private  life,  and  the  cares  of  family 
provifion,  will,  from  patriotifm  alone,  be  rafhly  abandoned 
for  an  office  of  a  day.  If  abfolute  independence  cannot, 
in  all  cafes,  be  added  to  the  tenure  of  office,  a  qualified  in¬ 
dependence  ought  to  be  implied  ;  a  condition  that  the  office 
(hall  be  held,  while  its  duties  are  competenly  performed.  No 
private  paffions  ought  to  interfere,  either  of  affection,  malice 
or  revenge.  Removal  from  motives  of  party  or  private  pal- 
fions  is  a  facrifice  cf  public  duty,  and  public  good  ;  arbitrary 
removals  are  wanton  injuftice  ;  impeachments  without  guilt 
are  cruel  perfecutions  ;  ail  fuch  removals  and  linpeacnments 
are  acls  of  tyranny  ,  and  the  date  in  which  thefe  prevail 
will  ban. (li  from  its  offices  every  man  of  an  honed  indepen¬ 
dent  (pint,  and  fill  its  public  Rations  with  knaves  and  fy- 
cophants. 

But  of  no  officers  is  the  tenure  of  office  fo  drongly  pro¬ 
tected  by  our  Conditution,  as  tnofe  of  the  judiciary.  AH 
others  are  either  dependent  on  the  will  of  the  Executive 
(which  however  is  prefumed  to  be  a  will  dictated  only  by  the 
public  good)  or  have  their  limits  prefcribed  fo  that  wre  can 
calculate  ro  a  moment  when  their  authority  will  expire,  uri- 
lefs  reanimated  by  the  will  of  the  people,  the  great  fource  of 
all  political  life.  The  Governor,  all  potent  as  he  is,  with 
his  hundreds  of  officers  bowing  to  his  nod,  mud,  unlefs  re¬ 
vived  by  the  will  of  the  people,  lay  down  his  fasces  at  the 
end  of  three  years  ;  and,  in  the  humble  walks  of  private 
life,  may  be  jollied  by  thofe  on  whom  be  now  looks  down. 
The  members  of  this  Honorable  Senate,  who  notv  fit  on  the 
trial  of  a  Judge  may  none  of  them  polfefs  this  power  in  four 
years,  many  of  them  not  in  three  years,  fome  ol  them  not  in 
two  years,  and  a  few  of  them  not  in  one  year;  unlels  reviv- 

Ied  by  the  Will  of  the  people.  There  is  no  member  of  the 
Honorable  Houle  of  Reprefentatives  who  can  fay  that  the 

i 


I  106  ] 


power  which  he  now  poffeffes  will  be  his  at  this  time  next 
year,  unlefs  revived  by  the  will  of  the  people.  So  precarious 
.s  the  condition  of  all  other  officers.  But  to  a  judge  our 
Conititutioa  affigns  a  tenure  of  office,  which  may  be  pcrma- 
neiit  as  the  world  itfelf ;  limited  by  an  uncertain  boundary, 
death  or  misbehaviour.  He  may  die  before  he  mifbehaves, 
tne  woild  may  ceaie  to  cxift  as  loon  as  he. 

In  this,  as  in  many  other  ufeful  things,  we  have  learnt 
from  the  experience  of  England.  There,  while  the  Judges 
held  their  authority  during  the  plea.fure  of  the  Crown,  they 
ivere  fometimes  its  inftruments  to  opprefs  individuals.  Soon 
aitci  the  revolution,  when  the  principles  of  liberty,  and  the 
interefls  of  the  people  began  to  be  more  effedually  regarded, 
permanent  falaries  were  eflablifhed  to  the  Judges,  by°A&  of 
Parliament,  and  their  commifTions  were  extended  to  good  be¬ 
havior.  Still  however  they  were  underflood  to  expire  on  the 
demiie  of  the  Crown,  the  fource  of  all  judicial  power.  But 
on  ths  recommendation  of  the  prefent  king,  in  the  ffi-fl  year 
cf  his  reign,  the  Judges  were,  by  ad  of  Parliament  conti¬ 
nued  in  their  offices,  during  their  good  behaviour,  notwith- 
ilanuing  any  demife  of  the  Crown,  and  their  full  falaries 
abfolutely  fecured  to  them,  during  the  continuance  of  their 
comnuffions  ;  44  as  efTential  to  the  impartial  adminiflration  of 
juftice  ;  as  one  of  the  befl  fecurities  of  the  rights  and  liber¬ 
ties  of  his  fubjecls  ;  and  as  raoft  conducive  to  the  honor  of 
the  Crown.’'* 

t J0!  !?Ch  rTp°f  ir‘!ependencf  has  our  Conftitution  placed 
)  Judges  ot  Ptnniyl vania.  Their  commiffions  are  during 

gooct  behaviour,  and  their  falaries  cannot  be  diminifhed.f 
And  this  is  efTential  to  the  impartial  adminiflration  of  jus¬ 
tice,  one  of  the  befl  fecurities  of  the  rights  and  liberties  of 
t-he  citizens,  and  mofl  conducive  to  the  honor  of  the  State. 

But  it  is  not  in  refpedl  of  emolument  and  duration  only, 
that  the  independence  of  the  office  of  a  Judge  is  fecured. 
Executive  officers  are  liable  to  civil  actions,  if,  by  any  mis¬ 
take  or  error  in  the  exercife  of  their  office,  they  injure  any 
individual.  ^  The  rules  for  Executive  condudt  are  generally 
plain,  pofitive  and  direct  ;  a  drift  conformity  is  practicable 
a;  f-  wctlTarji.  It  is  otherwife  with  the  exercife  of  judicial 
power.  Its  principles^  are  Ids  obvious  and  more  complex, 

prefent  not  the  lame  features  to  every  eye.  No  man 
voiid  accept  the  ^ffice  of  a  Judge,  if  his  eftate  were  to  an- 
Iwer  tor  every  error  of  his  judgment,  or  if  his  time  and  pro- 


i  Comm,  2Gr-a. — J  Cmst,  Jrt.  v.  Sect, 


9 

*  • 


I 


[  io r  ] 


/ 


perty  were  to  be  waded  in  litigations  with  every  man  whom 
his  decifions  might  offend.  It  is  therefore  a  fettled  princi¬ 
ple,  that,  however  erroneous  his  judgment,  or  however  inju¬ 
rious  to  a  fuitor,  a  judge  is  never  liable  in  any  civil  adtion 
for  damages  arifing  from  his  midake  ;  as  he  is  never  liable  to 
any  criminal  prcfecution,  but  for  an  evil  intention  manifed 
in  an  unlawful  act,  corruption,  or  wilful  illegal  oppreffion. 

Thus  anxioudy  have  our  conditution  and  laws  put  judges, 
while  they  adt  honedly,  above  all  dependence  and  all  fear, 
from  any  individual,  from  any  branch  of  the  Government,  or 
from  the  people  :  that,  abltradted  from  all  apprehecfions, 
they  may  adminider  juftice  impartially,  protedt  the  rights  and 
liberties  of  the  people,  and  promote  the  honor  of  the  ftate. 
The  end  of  all  government  is  the  good  of  the  people  :  and 
nothing  is  more  conducive  to  this  end  than  the  independence 
of  the  Judiciary.  No  principle,  not  even  the  principle  of 
reprefentation  itfclf,  goes  deeper  into  the  conditution  of  a 
free  Government,  than  that  of  an  independent  judiciary, 
without  an  independent  judiciary,  liberty  mull  be  always 
in  danger,  and,  however  excellent  the  laws,  the  peo¬ 
ple  may  be  in  fervitude.  Laws  derive  their  force  on¬ 
ly  from  their  execution,  and,  without  an  independent  judi¬ 
ciary,  to  adminider  the  laws,  they  become  nugatory,  or 
may  be  converted  into  indruments  of  oppreffion.  An  inde¬ 
pendent  judiciary  is  effential  to  liberty.  The  temper  and  dis- 
pofition  of  the  people  may  indeed  ward  off  tyranny,  even 
where  the  judiciary  may  be  dependent.  But  it  may  alfo.  do 
this  where  the  legiflature  is  not  founded  on  reprefentation, 
or  where  any  other  branch  of  the  government  is  improperly 
conflituted.  The  temper  and  difpcfition  of  the  people  will, 
under  any  government,  have  a  commanding  influence.  But, 
in  conflituting  a  government,  the  temper  and  difpodtion  of 
the  people  (important  and  effential  as  it  is,)  muft  not  be  reli¬ 
ed  on,  as  the  only  fafeguard  of  liberty.  For  their  own  good, 
it  is  neceffary  alfo,  that  reftraints  be  laid  upon  the  people,  as 
on  every  branch  of  government.  The  people  are  liable  to 
hafty  paffions  and  temporary  deludons,  as  inimical  to  their 
true  intereds,  as  the  word  defigns  of  their  word  enemies. 
Hence  arifes  the  neceffftv  of  deliberate  difeuflion,  delav  and 
complexity  of  decidon,  mutual  co-operation  and  mutual  re- 
ftraint.  For  if  any  one  branch  of  government  could  com¬ 
mence,  determine  and  execute  any  purpoie,  or  if  all  the 
branches  of  government  be  indantaneoully  adfed  on  by  the 
will  of  the  people,  all  public  tranfactions  wculd  be  affeefed 
by  temporary  padions,  and  the  adminidration  of  govern¬ 
ment  as  undeady  as  the  winds  or  the  waves. 


t  >08  ] 

This  is  a  fubjeft  of  great  importance,  that  deferves  a  deep 
aDQ  a  ^ent.ve  examination.  ^Vherever  tne  whole  fovereignty 
is  veiled  in  one  man,  or  in  one  body  of  men,  the  Government 
is  arbitrary.  It  is  not  the  individuality  of  the  perfon  who 
exerciles  the  whole  fovereigncy,  but  the  union  cf  all  power, 
that  conditutes  an  arbitrary  government.  Wherever  there 
is  an  union  of  ail  power,  the  government  is  arbitrary  ;  whe- 
tii^i  this  powei  be  exercifed  by  one,  by  many,  or  by  the 
whole  people,  it  is  the  didribution  of  power  that  fecure3 
liberty  ;  and,  to  fecure  this,  the  didribution  mud  be  real, 
not  nominal.  l  or  though  you  fiiould  didnbute  power  into 
a  thou  land  branches,  if  you  do  not  fecure  the  independence,  of 
each  branch,  but  give  to  one  an  afcendency  or  influence 
Ovci  nie  others,  you,  in  tadl,  give  to  this  predominant 
branch  the  whole  fovereignty,  for  you  enable  it,  together 
with  its  own  power,  to  exercile  the  powers  of  all  the*  red, 
b\  Uj  influence  over  them  ;  and  you  convert  a  free  into  an 
arbiti ary  government.  In  a  republican  government  like 
ours,  the  fovereignty  is  broken  into  parts,  and  didributed  to 
different  branches.  'And  though  cur  government  be  founded 
on  the  important  principle,  that  'he  fovereignty  is  in  the  peo¬ 
ple  ;  when  a  conditution  is  adopted,  the  people  is  no  longer 
lovereign.  J  hey  have  then  laid  down  their  lovereign  power  7  , 
they  aie  tubjects  to  tne  conditution  j  they  have  retained  but 
part  of  the  fovereignty  j  they  are  but  a  branch  of  the  go¬ 
vernment  ;  they  are  the  eledive  branch  ;  and,  in  other 
parts  of  the  fovereignty,  they  are  fubjeft  to  the  other 
branches,  the  legidative,  the  executive,  and  the  judiciary  : 
aHv.  a:l  l  iuojevL  to  the  conditution.  In  this  manner  does 
the  conditution  protect  the  liberty  of  the  citizen  againft  any 
aibhraiy  power  in  tne  whole  people,  or  any  branch  cf  go¬ 
vernment,  by  dmributmg  the  wiiole  lovereign ty  into  didindf 
portions,  and  affigning  each  ol  thofe  portions  to  a  diftincf 
branch,  and  giving  to  each  branch  the  exclufive  power  of 
exe.ciiing  the  whole  oi  its  own  portion  uncontrolled  by  any 
any  other,  with  a  power  in  other  branches  to  control  it,  if  it 
exceed  1^  own  portion.  i  hus  each  branch  is  independent  in 
the  exercife  of  its  own  power,  and  fo  checked  by  others  that 
it  cannot  go  beyond  it.  All  branches  are  equal  ;  none  is 
i  i  bject  to  any  other  :  they  are  all  co-ordinate  ;  none  is  fubor- 
ciinate.  ^  i  he  people  are  fovereign  and  independent,  in  the 
elective  branch  ;  the  Legidature,  in  the  legidative  ;  the  ju- 
(neiaiy,  in  tne  judicial  ;  and  the  executive,  in  the  executive 
oranch  ol  government.  i  here  is  r.o  fuperiority  in  any  one 
rve”  any  other,  in  the  exercife  of  its  own  functions.  Th*  is 
-be  1  ol  id.  foundation  of  republican  civil  liberty  j  and  whate- 
v  "i  '-'idurbs  the  independence  of  any  branch,  fhakes  the  whole 


t  109  1 

fabrick  of  Republican  government  :  Liberty  is  no  longer 
fafe,  when  this  equality  of  branches  is  deftroyed  ;  whether  the 
preponderance  be  given  to  the  people  themfelves,  or  the 
branch  raoft  within  the  control  of  the  people,  or  to  the  branch 
the  moll  remote  from  their  influence.  Let  it  never  be  for¬ 
gotten,  that,  in  the  diftribution  ol  power  and  the  indepen¬ 
dence  of  authorities.  Republican  liberty  confids. 

I  am  not  publifhing  any  ftrange  dodfrine.  This  is  a  doc¬ 
trine,  than  which  none  was  conlidered  more  found  and  ortho¬ 
dox,  by  the  founded:  and  mod  orthodox  Republican  ;  the  fe- 
paration  and  independence  of  the  powers  of  government. 
But  lately  a  novelty  in  Republican  politics  has  fprung  up, 
which,  if  it  get  head  and  prevail,  I  take  upon  me  to  fay  will 
dedroy  liberty.  I  will  not  engage  in  any  difquifition  on  this 
fubject,  nor  call  your  attention  to  tranfaclions  of  pad  or  pre- 
fent  times,  in  this  or  any  other  country.  But,  attached  as  I 
am  to  the  principles  ot  our  conditution,  I  mud  repeat  my 
warning  voice,  that  if  we  fubmit  one  branch  of  our  govern¬ 
ment  to  the  controul  or  influence  of  another,  our  liberty  is 
gone.  For  our  liberty  confids  in  maintaining  the  fovereign- 
ty  and  independence  of  all  the  branches.  Subjedt  one  to  any 
other,  and  you  prodrate  the  whole  fabrick  of  a  republican 
government.  The  ruin  indeed  may  not  indantly  appear,  but 
it  is  not  Iefs  certain. 

I  confefs,  that,  if  it  were  po.flible  for  me  to  abandon  the 
opinion,  that  abfolute  equality  and  independence  in  all  the 
branches  of  government  is  effential  to  liberty;  I  diould  be 
induced,  if  a  fuperiority  mud  be  allowed  to  any,  to  allow  it 
to  the  people  themfelves,  or  to  that  branch  which  is  neared 
the  people.  Not  that  I  am  feduced  by  the  common  expres- 
hon,  that  the  people  never  do  wrong,  (for  I  think  they  are 
perhaps  more  eafily  mided  from  their  true  intereds,  than 
any  other  branch  of  the  government  ;)  but  becaufe  I  think 
fuch  fuperiority  (if  fuperiority  mud  exid)  mod  analogous  to 
to  principle  of  our  government.  But  my  opinion  is,  that  a 
Republican  government  cannot  exid,  where  there  is  a  fuperi¬ 
ority  in  any  of  its  branches.  Equality  among  the  branches 
of  government  is  as  effential  a  chara&eridic  of  Republicanifm, 
as  Equality  among  the  citizens.  Didindtion  and  independence 
of  authorities  is  the  lecurity  of  a  free  government. 

The  other  branches  of  the  government  are  more  immedi¬ 
ately  or  remotely  within  the  reach  of  the  people,  the  elec¬ 
tive  branch.  1  he  judiciary  is  not  within  the  reach  of  the 
people.  If  none  of  the  brandies  of  the  government  were 
within  the  reach  ot  the  people,  there  might  be  arbitrary 

P 


C  no  J 


power  in  one,  or  in  a  combination,  of  the  other  branches* 

If  all  the  branches  of  government  were  within  the  reach  of 
the  people,  there  might  be  arbitrary  power  in  the  people,  as 
dangerous  in  them  as  ill  any  other  branch  of  the  government. 
Hence,  in  every  government  conftituted  on  the  principles  of 
liberty,  there  mu  ft  be  fome  one  branch  independent  of  the 
people,  and  of  the  other  branches  ;  to  protect  the  people 
againfl  the  other  branches,  and  the  other  branches  agai'  ft 
the  people.  This  intermediate  independent  branch  in  our 
government  is  the  judiciary  :  which  is  the  guardian  of  the 
conftitution  ;  the  guardian  of  the  people  againft  the  legifla- 
tive  and  executive  power  ;  the  guardian  of  the  Legiflature, 
againft  the  executive  and  elective  power  ;  the  guardian  of 
the  executive,  againft  the  legiflative  and  elective  power  ;  and 
the  guardian  of  every  individual,  againft  every  power.  No 
branch  of  the  government  exercifes  more  important  func¬ 
tions  of  fovereignty  ;  none  is  more  eflential  to  the  preferva- 
tion  of  the  conftitution,  and  the  protection  of  public  and  in¬ 
dividual  rights  ;  none  fo  influential  on  the  interefts  and  hap- 
pinefs  of  the  people  ;  and  of  none  ought  the  independence  to 
be  cherilhed  with  fuch  facred  refpedt.  Touch  its  indepen¬ 
dence,  and  liberty  is  gone.  Make  it  fubfervient  to  either  of 
the  other  branches,  and  the  people  are  deprived  of  their  pro¬ 
tection.  Make  it  fubfervient  to  the  people,  and  the  other  , 
branches  of  government  have  no  protection.  Remove  the 
independence  of  the  judges,  and  where  is  the  authority  to 
prevent  fome  other  branch,  or  a  combination  of  fome  of  the 
other  branches,  from  feizing  arbitrary  power  ?  An  ambitious 
and  intriguing  executive,  with  a  weak  or  venal  Legiftature, 
may  deftroy  the  liberties  of  the  people,  and  make  the  people 
themfelves  the  pailive  or  willing  inftruments  of  their  own  Ha¬ 
ve  ry.  When  the  flieep  had  furrendered  their  dogs,  the 

wolves  tore  them  in  pieces. 

It  is  not,  therefore,  for  the  fake  of  the  judges,  but  for 
the  fake  of  the  people,  that  our  conftitution  has  fo  carefully 
guarded  the  independence  of  the  judiciary  ;  that  the  judges, 
let  above  all  fear,  may  boldly  exert  their  authority  for  the 
protection  of  every  public  and  private  right.  Who  can  pre¬ 
vent  oppreffion  from  illegal  acfts  of  the  executive  ?  The  ju¬ 
diciary.  But  dare  the  judiciary  do  this  if  the  judges  lie  at 
the  mercy  of  the  executive  1  Who  can  prevent  oppreflion  of 
individuals  from  temporary  paflions  of  the  people,  or  malice 
of  influential  demagogues  ?  The  judiciary.  But  dare  the 
judiciary  do  this,  if  the  judges  lie  at  the  mercy  of  the  peo¬ 
ple  1  Dare  an  inferior  difpute  the  will  of  a  fuperior  !  What¬ 
ever  branch  of  the  government  a  (fumes  a  fuperiority  over  the 


[  ni  3 


judiciary,  will  foon  draw  to  itfelf  arbitrary  power.  So  es- 
fential  to  liberty,  and  the  due  adminidration  of  judice  is  the 
independence  ot  the  judges  ;  that,  if  the  conditution  laid  no 
injunction,  it  would  be  the  duty  of  tne  legiflature  to  make 
the  judges  independent.  This  duty  is  not  merely  poative, 
as  prefer ibed  by  the  conflitution  :  it  is  alto  a  moial  duty, 
riling  out  of  the  principles  of  liberty,  fafety  and  judice. 
The  Britilh  parliament,  without  any  imperious  injunction  ct 
a  conditution,  made  their  judges  independent,  to  attain  the 
impartial  adminifiration  of  juflice,  iecure  the  rights  or  the 
people',  and  promote  the  honor  of  the  date. 

But  is  there  no  danger  from  this  independence  of  the 
judges  !  There  can  be  none.  It  is  a  fliield  to  the  people  ; 
it  never  can  be  a  fword.  The  judiciary  branch  has  no  pa¬ 
tronage,  no  difpofal  of  public  money.  Its  powers  and  duties 
are  limited.  It  can  make  no  laws  :  it  only  pronounces  laws 
already  made.  The  reliduary  power  ot  government  is  in  the 
legiflature.  The  legiflature,  limited  only  by  the  conditu¬ 
tion,  can  make  what  laws  it  pleafes,  aivi  change  the  laws  as 
it  pleafes.  Guarded  as  it  is  by  the  powers  of  the  legifla¬ 
ture,  of  the  executive,  and  of  juries,  the  power  ot  the  ju¬ 
diciary  is,  and  always  mud  be,  harmlefs  and  inoffenfive  : 
and,  from  this,  and  its  elTential  ufefulnefs,  this  branch  of 
government  ought  to  be  treated  by  the  people,  and  by  every 
other  branch  of  government,  with  peculiar  refpecl  ;  and  its 
independence  facredly  preferved,  for  the  prefervation  of  li¬ 
berty  ^ind  judice. 

This  independence  of  the  judges  con  fids  in  their  being  fe- 
tured  in  their  office  during  good  behavior,  and  in  the  pay- 
ment  of  their  falaries  without  any  diminution.  1  his  puts 
them  above  all  fear.  Some  have  gone  fo  lar  as  to  think  that 
all  motive  of  hope  ought  alto  to  be  removed,  by  prohibiting 
any  augmentation  of  ialary.  1  his  was  propofed  in  the  lad 
convention  of  this  date.  But  the  probable  reduction  c n  the 
value  of  money,  during  the  life  oi  a  judge,  rendered  this  pic- 
vifion  manifedly  improper. 

But  this  independence  of  the  judges  ought  to  be  a  real, 
and  not  a  nominal  independence.  In  vain  does  the  conditu¬ 
tion  preferibe  that  the  judges  fhall  hold  their  office  during 
good  behavior,  with  their  falaries  undiminifhed,  if  the  le¬ 
giflature  may  harrafs  them  with  frivolous  impeachments,  or 
arbitrary  addrefles  for  removal,  or  wantonly  feparate  their 
refidence  from  their  jurifdiclion.  Thefe  are  abuies  of  legis¬ 
lative  authority,  frauds  upon  the  conditution,  and  oppreffion 
of  the  judges.  It  is  dedroying  the  protection  of  the  pcq- 


[  H2  ] 


pie  ;  for  it  is  humbling,  degrading  and  enervating  a  power 
eftablifhed  for  the  prote&ion  of  the  people.  It  is  removing 
all  motives  to  a  manly  and  ufeful  exertion  of  judicial  au¬ 
thority,  and  teaching  the  judges  a  tame  obfequious  fpirit  of 
fycophancy  and  bale  compliance.  It  is  making  the  judges 
ready  tools  of  every  reigning  party,  and  reigning  paffion, 
proftitutes  to  popularity,  and  ftu&uating  haves  to  influence. 
I  know  not  a  name  too  bad  to  give  to  a  difpofition  fo  dan¬ 
gerous,  to  a  vanity  of  perverted  power  fo  defpicabie  but  per¬ 
nicious.  It  is  foftering  meannels  and  corruption  in  the  no- 
bleft  branch  of  the  government,  and  poifoning  the  fprings  of 
the  adminiflration  of  juftice.  Juhice  ought  to  be  hern,  hea¬ 
dy,  uniform  and  uncomplying.  If  you  indulge  this  fpirit, 
you  will  make  her  veering  to  every  gale,  and  fhifting  to  eve¬ 
ry  point  of  the  compafs.  You  may  thus  indeed  break  the 
ipirit  of  the  judges  ;  but  you  dehroy  the  ark  of  the  people’s 
fafety.  The  temper  of  a  judge  ought  to  be  ere<h,  fearlefs 
and  formidable  ;  if  you  make  it  fawning,  fubfervient  and 
courting,  you  indeed  ehahlifh  the  fuperiority  of  the  legiha- 
ture  ;  but  you  lay  its  foundation  in  the  grave  of  the  liberties 
and  rights  of  the  people,  and  raife  a  hru&ure  of  arbitrary 
power.  Ycu  eredf  a  citadel,  which  will  firh  overawe  all 
other  authorities  ;  but,  when  you  can  no  longer  keep  the 
key  or  guard  the  works  will  overthrow  you.  Without  a 
really  independent  judiciary,  no  republican  government  can 
hand,  and  no  people  can  be  free. 

The  power  of  impeaching  judges,  is  an  ufeful  power  ;  the 
power  of  removing  judges  may  be  an  ufeful  power  :  but  the 
utility  of  both  depends  on  a  proper  exercife  ;  and  the  abufe 
of  either,  will  dehroy  either.  Ohracifm  was  faid  to  be  ufe¬ 
ful  in  Athens  ;  but,  when  perverted,  it  became  contempti¬ 
ble,  and  fell  into  difufe.  If  the  Houfe  of  Reprefentatives 
wifh  to  preferve  refpeaability  to  their  power  of  impeaching, 
they  muft  not  ufe  it  on  all  occafions  :  they  muh  ufe  it  only 
on  fit  occafions,  or  it  will  fall  into  difgrace. 

I  hand  not  heie,  to  claim  impunity  to  the  judges  \  I  hand 
not  here,  to  claim  favor  to  the  judges  ;  I  hand  not  here,  to 
claim  any  indulgence  to  me.  Confcious  as  I  am,  of  honeft 
motives  and  proper  conduct,  I  claim  only  hria  juhice,  mea- 
fured  out,  as  it  is  meafured  out  to  the  worh  of  criminals,  by 
known  and  ehablifhed  rules. 

On  thefe  terms,  I  now  requeft  from  the  Senate,  a  patient 
and  candid  examination  of  the  articles  of  accufation  and 
impeachment,  which  the  Houfe  of  Reprefentatives  has 
thought  proper  to  prefer  againh  me. 


[  113  ] 

r  ,  ■  ** 

Article  I.  Charges  u  That  the  faid  Alexander  Addi- 
ion  See." 

I  am  here  charged  as  prefident  of  a  court  of  common  pleas. 
A  prefident  of  a  public  body  is  conhdered  as  the  mouth  of 
that  body.  This  mild  be  efpecially  the  cafe  in  the  court  of 
common  pleas,  condituted  as  they  are  ;  where  the  prefident 
only  is  prefumed  to  be  lkilleci  in  the  laws,  and  otner  perfons 
are  aflociated  with  him*.  Some  of  the  aflociates  may  alio 
have  made  the  fcience  of  law  their  dudy.  But  law  is  an  ex- 
tenfive  fcience  which,  underdood  in  all  its  parts,  is  a  refined 
fydem  of  good  fenfe,  hut  viewed  only  in  detail,  by  eyes  which 
do  not  contemplate  the  whole,  it  may  leem  mixed  with  ab- 
furdities.  Hence  a  half  lawyer  makes  the  word  judge,  for 
his  common  fenfe  is  fettered  by  arbitrary  rules,  of  which  he 
underdands  neither  the  principle  nor  the  application.  In  the 
court  of  common  pleas  it  is  not  as  in  the  iupreme  court  :  tor 
though  all  the  judges  are,  it  is  true,  equal  in  power,  all  are 
not  prefumed  equal  in  knowledge.  Situation  will  make  habits 
and  manners.  Much  .of  the  burden,  and  much  of  the  refpon- 
libility  devolves  on  the  prefident  of  a  court  of  common  pleas  : 
and,  in  this  refpedt ,  there  is  no  analogy  between  his  fituation, 
and  that  of  a  chief  judice  of  the  fupreme  court  ;  whofe  affb- 
ciates  are  not  only  equal  to  him  in  power,  but  equal  to  him 
in  knowledge  ;  and  inferior  only  in  dignity  and  precedence. 
I  could  not  be  underdood  as  expredmg  any  cenfure  on  the 
conditution  of  the  county  courts.  On  the  contrary  (and  I 
fpeak  from  experience,  the  true  fource  ot  knowledge)  I 
think  it  well  calculated  and  better  calculated  than  any  other, 
for  public  utility.  There  is  a  gradation  in  all  things,  and 
violent  tranfitions,  from  one  extreme  to  another,  are  not 
according  to  the  fydem  of  nature.  To  dep  at  once,  from 
a  judice  of  the  peace,  to  a  county  court  as  refpeCtably  con- 
ftituted  as  the  fupreme  court,  might  feem  too  violent  an  ex¬ 
ertion.  To  recur  to  the  old  fydem  of  judices  of  the  peace,  no 
wile  man  will  recommend.  But  a  mixture  of  popular  tempe¬ 
rament  may  advantageoufly  be  given  to  the  county  courts. 
A  greater  knowledge  of  witnell'es,  jurors,  and  fuitors  will  thus 
be  in  the  courts.  Many  tran factions,  ot  a  public  but  local 
nature,  are  committed  to  the  county  courts  ;  for  the  execu¬ 
tion  of  which  fnch  a  knowledge  of  characters  in  the  county, 
as  cannot  generally  be  had  by  judges  not  refident  in  it, 
may  be  often  necelTary.  Judges  refident  in  the  county,  and  oc- 
calionally  converfing  with  the  people,  may  (and  this  is  of 
great  importance)  remove  mifconceptions  and  prejudices, 
which  will  exid  againd  the  wiled  conduct  or  any  court. 

*  St.  L .  93. 


t  ] 


Skill  too  may,  by  this  conditution  of  the  county  courts,  be 
attained  ,  if  care  be  taken  to  appoint  preddents  of  under¬ 
loading,  knowledge,  and  experience  ;  and  affociate  judges 
of  good  fenfe.  modedy,  and  firmnefs.  For  my  part,  I  can 
fay,  that  I  have  had  great  fatisfadion  and  affidance  from 
thofe  judges,  efpecially  from  thofe  who  have  been  longed  af- 
fociated  with  me.  What  they  have  exeprienced  from  me,  they 
have  themfelves  declared.  And  it  is  my  fincere  belief,  that 
an  alteration  of  the  county  courts  will  not  be  followed  by 
popularity  or  fatisfadion. 

This  much  I  thought  proper  to  fay  of  the  fituation  in 
which  I  ftand  impeached  by  this  article.  With  refped  to  the 
article  itfelf,  partiality  in  my  own  cafe  may  have  led  me  in¬ 
to  a  midake,  and  others  may  view  it  differently  from  me  ; 
but  to  me  it  feems  the  mod  extraordinary  criminal  charge 
that  I  ever  law.  The  only  fad,  which  it  charges,  is  that, 
In  the  court  of  common  pleas  of  Allegheny  county,  after  John 
Lucas,  one  of  the  affociate  judges  of  that  court,  had  addreffed 
a  petit  jury  in  a  caufe  then  on  trial  ;  I,  who  was  preiident  o£ 
that  court  “  did  openly  declare  and  fay,  to  the  faid  jury, 
that  the  addrefs  delivered  to  them,  by  the  faid  John  Lucas, 
had  nothing  to  do  with  the  quedion  before  them,  and  that 
they  ought  not  to  pay  any  attention  to  it”.  Now,  fuppofe 
I  did  fay  all  this,  what  is  there  criminal  in  it  ? 

What  the  caufe  or  what  the  quedion  before  the  jury  was, 
this  article  does  not  fet  forth  ;  as  it  furely  ought  to  have  done. 
What  evidence  was  given  on  the  trial,  is  not  fet  forth. 
What  the  addrefs  was,  which  the  judge  Lucas  delivered  to  the 
jury,  this  article  does  not  fet  forth  ;  as  it  furely  ought  to 
have  done.  In  any  court  of  judice,  fuch  an  indi&ment  would 
be  quafhed  on  motion  ;  and,  even  after  a  verdict,  it  could  not 
iupport  a  judgement.  Without  dating  the  caufe  which  was 
on  trial  how  could  I  prepare  myfelf  for  defence  ?  Is  it  reafon- 
able  to  prefume  that  I  mud  remember  in  what  particular  caufe, 

I  ufed  fuch  expredlons,  and  the  ground  on  which  I  could  judi- 
fy  them  ?  Was  1  to  be  brought  down  here  blindfolded,  and 
my  eyes  opened  only  here  ?  I  have  been  brought  down  blind¬ 
folded  ;  for  all  information  of  the  nature  of  the  charge  was 
cruelly  refufed.  No  criminal  a&  is  dated  on  this  record  ;  no 
acl  which  I  could  reafonably  be  prefumed  to  be  prepared  to 
judify.  I  might  have  recollected  one  tranfadion,  and  pre¬ 
pared  to  juflify  it.  But,  when  I  came  down  here,  Mr.  Lucas 
might  have  fworn  to  another.  Unlefs  the  quedion  before  the 
jury,  and  the  addrefs  delivered  by  Mr.  Lucas,  be  fet  forth  on 
this  record,  how  can  you  fee,  as  you  ought  to  fee  on  this  re¬ 
cord,  that  I  was  midaken,  much  lefs  criminal,  in  faying  to. 


t  *15  ] 


# 


the  jury  that  this  addrefs  of  Mr.  Lucas  hafl  nothing  to  do 
with  the  queftion  before  them,  and  they  ought  not  to  pay 
any  attention  to  it  ?  To  make  even  a  miftake  in  me  appear 
on  this  record,  this  ftrange  prefumption  muft  me  made,  that, 
in  no  cafe  is  it  poffible,  that  Mr.  Lucas  fhould  fpeak  imper¬ 
tinently,  and  that  he  mud  always  fpeak  to  the  purpofe.  And 
fhall  a  criminal  charge  be  made  on  a  prefumption  fo  wild  and 
extravagant  as  this  !  The  addrefs  of  Mr.  Lucas  may  have 
been  impertinent  to  the  cafe,  may  have  had  nothing  to  do 
with  the  queftion  before  the  jury  ;  and,  if  fo,  it  was  my  duty, 
as  prefident  of  the  court,  to  fay  to  the  jury,  that  they  ought 
not,  in  their  deliberations,  to  pay  any  attention  to  it.  In 
the  act  fet  forth  on  this  record,  no  guilt,  not  even  fault,  ap¬ 
pears  :  it  even  may  have  been  an  aft  of  duty  and  of  merit. 

But,  to  make  it  an  offence,  a  kind  of  attempt  is  made  to 
alledge  an  evil  intention.  It  is  ftated,  that  I  faid  thofe. 
words,  “  thereby  degrading  or  endeavouring  to  degrade  and 
vilify  the  faid  John  Lucas,  and  his  character  and  office  ;  to 
the  obftruction  of  the  free  impartial  and  due  adminiftration  of 
jultice,  and  contrary  to  the  public  rights  and  interefts  of  this 
commonwealth.”  This  manner  of  expreffion,  when  ufed  in 
indictments,  is  always  after  an  offence  has  been  compleatly 
ftated  ;  always  after  an  unlawful  act,  with  an  evil  intention, 
has  been  exprefsly  alledged.  This  manner  of  expreffion  is 
never  employed  to  aliedge  an  offence  ;  but,  from  an  allegation 
of  an  offence,  to  draw  an  aggravating  conclufion.  Here  there 
is  a  conclufion  drawn  without  any  premifes  to  l'upport  it. 
Take  away  this  conclufion,  and  will  any  man  fay  that  any 
offence  is  ftated  1  I  am  to  anfwer  only  for  my  own  conduct ; 
not  for  the  inferences  which  the  framer  of  this  article  may 
have  chofen  to  draw  from  my  conduft. 

This  Article  is  plainly,  on  every  principle  of  found  reafon- 
ing,  an  abfolute  nullity.  It  charges  me  with  no  unlawful 
aft  ;  it  charges  me  with  no  evil  intention  :  the  only  evil 
thing  in  it  is  of  the  making  of  him  who  drew  up  the  article. 

But  admitting  that  an  evil  intention  has  been  exprefsly  an¬ 
nexed  to  the  aft  with  which  I  am  charged  ;  would  this  make 
an  indictable  or  impeachable  offence  ?  If  the  aft  itfelf  be  law¬ 
ful  will  an  evil  intention  make  it  an  offence  ?  Are  ye  judges 
of  the  heart  ?  Or  can  a  human  tribunal  ever  infer  an  evil  in¬ 
tention,  but  from  an  unlawful  aft  ?  An  unlawful  aft  muft  be 
firft  proved,  before  you  take  up  the  confideration  of  the  inten¬ 
tion,  and  both  muft  concur  to  make  an  oftence. 

All  that  this  article  alledges  againft  me  is,  that  I  faid  to 
to  the  jury,  “that  the  addrefs,  delivered  to  them  by  John 


I  ^6  ] 


Lucas,  had  nothing  to  do  with  the  queftion  before  them,  and 
that  they  ought  not  to  pay  any  attention  to  it”.  The  reft  of  the 
article  is  nothing  to  me  ;  it  is  no  allegation  againft  me  •;  it 
is  merely  the  work  of  the  perfon  who  drew  up  the  article* 
Is  there,  then,  any  thing  unlawful  in  thofe  words,  (landing 
as  they  (land  in(the  article,  without  any  thing  to  explain  them.? 
Do  they  date  any  unlawful  aft  ?  Can  any  evil  intention  be 
fairly  inferred  from  them  ?  Do  they  admit  of  but  one  con- 
clufion  to  be  drawn  from  them  ?  Two  conclufions  may  be 
drawn  from  them  ;  either  that  Mr.  Lucas  was  right,  and  I 
was  wrong  ;  or  that  I  was  right,  and  Mr.  Lucas  was  wrong. 
Which  of  the  conclufions  was  the  mod  probable,  could  be 
judged  only  by  thofe  who  know  Mr.  Lucas,  and  know  me. 
Which  was  the  true  conclufion,  couldbe  known  only  by  thofe 
who  heard  his  addrefs  and  my  remark,  and  what  gave  occa- 
fion  to  both,  or  Avere  tveil  informed  of  all.  But,  as  the  con¬ 
clufion  drawn  in  this  article  is  not  a  neceffary  conclufion, 
theie  is  no  right  to  draw  it  tvithout  prermfes  ;  and  if  there 
were  premifes,  they  ought  to  have  beeu  fet  out,  that  I  might 
have  ieen  them  and  prepared  myfelf  to  arifwer  them. 

I  prefume  to  hope,  that  it  now  fufficiently  appears  to  the 
Senate,  that  this  article  of  accufation  and  impeachment,  fo 
folemnly  “preferred  by  the  Houfe  of  Reprefentatives  of  the 
commonwealth  of  Pennfylvania,  and  exhibited  to  the  Senate 
of  the  faid  commonwealth,”  is  a  mere  nullity;  that  it  reds 
on  no  foundation,  has  no  juft  reafoning  to  fupport  it,  and  pro¬ 
ceeds  entirely  on  begging  the  queftion. 

But  Avavingthe  inefficiency  of  this  article,  I  now  requed 
your  attention  to  the  fails  on  Avhich  it  is  founded  :  and  if, 
in  them,  you  find  proof  of  any  unlawful  act  Avith  an  evil  in¬ 
tention,  I  claim  no  advantage  from  the  unfubdantial  nature 
of  this  article  of  impeachment. 

It  is  manifed  from  the  nature  of  the  a&ion  which  was  on 
trial  before  the  jury,  and  of  the  addrefs  of  Mr.  Lncas  to 
that  jury,  that  his  addrels  Avas  altogether  foreign  to  the 
ifiue  iubmittedto  the  jury,  and  ought  to  have  no  influence  on 
their  verdict*.  On  this  date  of  the  cafe;  then,  I  appeal  to  this 
Senata,  Avhether  the  addrefs,  delivered  by  Mr  Lucas  to  the 
jury,  had  any  thing  to  do  Avith  the  queftion  before  them; 
and,  Avhether,  if  it  had  nothing  to  do  with  the  queftion  before 
them,  it  Avas  not  my  duty  to  tell  the  jury,  that,  in  deliberat¬ 
ing  on  their  verdict,  they  ought  not  to  regard  the  circum- 
dance  dated  in  that  addrefs. — This  is  “  the  head  and  front 
®f  my  offending.” 

*  See  Appendix  dSfo.  I. 


r 


t  «»r  i 

I,  as  prefident  of  that  court,  had  delivered  a  charge  to' 
the  jury,  ftating  the  evidence  and  the  points  of  the  cafe,  in 
the  manner  that  I  thought  right.  To  difencumber  a  cafe  of 
all  ufelefs  and  impertinent  matter;  to  difembarrafs  the  jury 
from  all  extraneous  circumftances,  and  direct  their  view  only 
to  the  material  points,  is  the  great  objeft  of  a  charge  to  a 
traverfe  jury.  When  a  prefident  has  done  this,  if  an  affo- 
ciate  judge  will  again  throw  in  extraneous  and  impertinent 
matter,  to  perplex  the  confederations  of  the  jury  ;  is  it  not 
the  duty  of  the  prefident,  to  caft  it  out,  and  tell  the  jury  to 
pay  no  attention  to  it?  Docs  not  tne  free,  impartial  and  due 
adminiftration  of  juftice,  do  not  the  rights  and  interefts  of 
this  commonwealth,  require  this  ?  Who  degrades  and  vili¬ 
fies  fuch  an  affociate  judge  ?  Is  it  not  himfelf  ?  Who  ob- 
ftrudls  the  free,  impartial  and  due  adminillration  of  juftice  ? 
Is  it  not  fuch  an  affociate  judge  ?  Who  acts  contrary  to 
the  public  rights  and  interefts  of  this  commonwealth  ?  Is  it 
not  fuch  an  affociate  judge  ?  Sure  I  am,  that  I  did  not  de¬ 
grade,  nor  endeavor  to  degrade  or  vilify,  this  John  B.  C. 
Lucas,  his  character  or  office  ;  that  I  obftru&ed  not  the  free, 
impartial,  and  due  adminiftration  of  juftice  ;  that  I  did 
nothing  contrary  to  the  public  rights  and  interefts  of  this 
commonwealth.  I  did  what  I  felt  and  knew  to  be  my  duty, 
and  what  I  fhouldhave  thought  myfelf  wanting  in  my  duty, 
if  I  had  not  done.  And  in  doirg  this,  my  only  objedt  was, 
to  protect  the  honor  of  the  court,  and  promote  the  due  ad- 
miniftration  of  juftice.  I  deferve  praife  for  it,  not  impeach¬ 
ment  :  and  a  fair  ftatement  of  the  fadfs  alluded  to  by  this  ar¬ 
ticle,  muft,  I  think,  exhibit  me,  to  every  unprejudiced  eye, 
not  as  an  offender,  but  as  a  meritorious  officer. 

Article  II.  of  this  impeachment  is  not  liable  to  all  the 
obje&ions  againft  the  fir  t.  1  hope  however,  if  the  Senate 
will  indulge  me  with  a  patient  hearing,  to  fatisfy  every  can¬ 
did  mind,  that  this  accufation,  in  a  criminal  view,  is  as 
groundlefs,  and  my  conduft,  in  this  refpedt,  as  innocent  at 
leaft,  if  not  as  meritorious,  as  that  which  is  the  fubjeft  of 
the  firft  article. 

This  article  does  alledge  an  unlawful  a&  ;  and,  from  the 
allegation  of  an  acl  plainly  unlawful,  the  inference  of  au 
evil  intention  may  be  formally  drawn.  But  it  is  not  enough 
that  the  charge  againft  me  be  formally  laid  ;  the  proof  of 
this  charge  muft  be  fubftantially  made  out.  It  muft  be  prov¬ 
ed,  to  your  fatisfadlion,  that  I  did  an  unlawful  att,  and  that 
I  did  it  knowingly  and  wilfully •  A  mere  unlawful  a£t  from 


\  m  i 

a,  rmdake  or  error  In  judgment  cannot  be  alledged  againfl  me 
as  a  crime.  Not  only  wrong,  but  wilful  wrong,  mud  be 
made  out,  or  the  offence  is  not  compleat.  There  mud  be  an 
unlawful  act  with  an  evil  intention ,  cr  you  cannot  fay  that 
there  is  guilt. 

The  fub dance  of  the  allegation  againft  me  is,  that  I  tc  did, 
at  a  court  of  quarter  fefficns,  unjudly,  illegally  and  uncon¬ 
ditionally,  claim,  ufurp,  and  exercife  authority  not  given 
or  delegated  to  me  by  the  conditution  and  laws  of  this  com¬ 
monwealth.”  The  fad  fpecihed  of  this  ufurpation  is,  that  I 

did  unjudly,  illegally  and  unconditutionally  dop,  threaten 
and  prevent  John  Lucas,  a  judge  of  that  court,  from  ad- 
tire  fling  a  grand  jury  concerning  their  rights  and  duties.” 
-  rom  this  allegation  and  fpecification,  the  conclufion  is 
drawn,  of  my  i(  abudng  and  attempting  to  degrade  the  high 
offices  of  preddent  and  judge  as  aforefaid,  to  the  denial  and 
prevention  of  public  right,  and  of  the  due  adminidration  of 
judice.” 

Though  this  article  fufficiently  alledge  an  offence,  an  un- 
jud,  illegal  and  Hinconditutional  a<d  ;  before  I  be  convicted 
cf  this,  it  mud  be  made  out,  that  this  adt  was  clearly  un- 
juft,  illegal  and  unconditutional  ;  fo  manifedly  illegal,  that 
I  mud  have  feen  it,  and  could  not  be  midaken.  Unlefs  it 
be  fo  clearly  made  out,  no  evil  intention  can  be  inferred  ; 
and,  without  an  evil  intention,  there  can  be  no  crime.  I 
mud  not  be  made  a  criminal  from  a  midake  of  the  head, 
fro  m  an  error  in  judgment  :  Some  mifchief,  fome  perverhon, 
fome  corruption  of  the  heart  mud  be  diewn.  I  alk  no  fa¬ 
vor,  I  claim  no  indulgence,  I  defire  only  judice  ;  that  I 
may  be  tried  by  known  and  edablifhed  rules. 

N  ow  where  is  the  rule  of  natural  judice,  where  is  the  rule 
of  common  law,  where  is  the  claufe  in  any  datute,  where  is 
the  claufe  in  the  conditution  ;  that  makes  it  unjud,  or  ille¬ 
gal,  or  unconditutional,  for  the  preddent  of  a  court,  to  pre¬ 
vent  an  afibciate  judge  from  delivering  a  formal  charge  to  a 
grand  jury  ;  I  folemnly  declare,  I  know  of  none  ;  none  from 
which  fuch  inference  can  be  clearly  or  even  fairly  drawn. 

"Where  is  the  ufage  to  fnpport  the  right  claimed  for  this 
allociate  judge  ?  Was  it  ever  before  claimed  ?  Gan  a  lingle 
indance  be  produced,  where,  after  a  preddent  had  delivered  a 
formal  charge  to  a  grand  jury,  an  affociate  judge  undertook 
to  deliver  another  formal  charge  ?  Shall  I  be  made  a  crimi¬ 
nal  for  redding  an  innovation  founded  on  no  law  !  Is  not  he 
the  offender  who  introduces  the  innovation,  rather  than  he 
who  redds  it. 


/ 


t  119  3 

Mamfetl  inconvenience  would  refult  from  the  indulgence 
of  'this  claim.  If  one  affociate  judge  may  do  this,  all  may 
do  it  •  and  who  lhall  limit  them  in  the  time  winch  each  may 
occupy,  or  the  fubjecTis  on  which  he  will  expatiate  .  Who 
fiiall  prevent  wild  extravagance  of  opinion,  and  endlefs  mu¬ 
tual  altercation  in  public?  Whither  would  all  this  lean  . 
u  Let  all  things  be  done  decently  and  in  order. 

Every  body  of  men,  united  for  a  public  purpofe,  is  a  ioit 
of  corporation;  and  forms  long  praftiicd  amotg  tjeni 
come,  without  any  exprefs  inftitution,  a  kind  of  oye  laws  oi 
regulating  their  conduct.  To  break  through  any  ot  _  l0i 
forms  is  a  violation  of  order  and  decorum,  which  requires  an 
exprefs  permifiion  of’  the  public  body  to  fanaion.  It  is  tne  v 
duty  of  the  prefident  of  every  public  body  to  pieferve  \c 
ufages  and  forms  of  order;  and,  in  this,  he  can  be :controi  ^ 
ed,  not  by  one  member,  but  by  the  public  boay.  neie  are 
members  of  this  Senate,  who  are  acquainted  with  proceed 
ings  in  ecclefiaftical  courts.  In  a  prefbytery,  tor  inLance, 
the  moderator  opens  the  meeting  with  prayer.  Suppose,  su- 
terhehas  done  this,  another  member  preiummg  tna.  ne 
could  perform  this  duty  more  properly,  thould  rile  up  to 
make  another  prayer  ;  would  not  the  moderator  flop  him  . 
doing  this,  would  he  violate  the  rights  of  this  memoer,  or 
obll ruct  the  due  adminiftration  of  the  affairs  of  the  church  - 
Could  the  moderator  be  proceeded  againft  as  an  onenuer  . 

Is  he  not  preferving  the  decent  order  of  their  proceed  mgs  . 
You,  fir,  as  Speaker  of  this  Senate,  know  that  there  are  cer¬ 
tain  duties,  which,  in  every  public  body,  it  belongs  to  tne 
prefident  exclusively  to  perform  :  and,  though  another  mem¬ 
ber  may  think  he  can  perform  thofe  duties  better,  jc  nun. 

not  affume  them. 

I  can  fee  Mr.  Lucas’  conduft  in  no.  other  light,  than  as 
a  firuggle  whether  he  or  1  fliould  be  prefident  of  the  court  o. 
Allegheny  county.  And  I  folemnly  declare  to  the  Senate,  in 
the  prefence  of  Almighty  God,  that  I  ihould  have  thought  I 
betrayed  the  honour  of  my  trull,  and  failed  in  iny  uu'.y,  1 
had  acted  otherwise  than  I  have  done.  If,  m  this  opinion, 
1  err  ,  it  is  a  delufion  which  1  cannot  overcome.  1  have  con- 
fidered  it  with  attention  and  deliberation  ;  and  iny  judgment 
compels  me  to  adhere  to  it.  I  he  legittature  may  make  a  .aw, 
declaring  what  lhall  he  done  hereafter  ;  and  I  fliall  ie  pea- 
fully  fubmit  to  it.  But  to  no  power  on  earth,  fhort  ot  the  legis¬ 
lature,  or  a  judicial  determination  of  a  luperior  court  in  the 
point,  can  I  furrender  my  judgment  on  this  point. 

If  1  have  not  very  much  deceived  myfelf,  I  think  it  muff 


[  120  ] 

now  aPPfar  t0  thp  ?ena » «■,  that  in  this  accufation  the  • 
criminality,  no  fault,  not  even  any  error  in  i.,7’  ‘S  1,0 

that  my  conduct  is  not  only  innocent,  but  8 

Jn,  mln^rri^’  /" till  maU7  bet7een 

either  grand  or  petit  T  '",med,ate  d«ies  of  a  jury, 

or  inte?r«pted  7rom  ei!reffinr  hi  hT"n  **"«»£ 

ssr“  ■  ;«•  -v  stt 

obfeivations  on  the  immediate  duties  of  a  grand  jury  *°The 

lt:Z  t':aSa,  a  ormerhlJa  ""to  ^  b,1"  ^  ^  C0U^ 

altercation,  and lp,{™"  f&’Z "JZZ 

from^a  fente  of  duty,  and  not  from  any  i„  difpofition LZs 

r-Zn’S  a-P?Cars,  that  Mr-  Luras  not  only  acling  a- 
gainfi  niy  opinion,  but  againft  the  opinion  of  the  court  of  A1 

legheny  county  declared  to  him.  So  that  it  was  not  I  that 

controlled  Mr.  Lucas  :  it  was  he  that  endeavoured  to  con 

is™  ftra°nVenfonof ‘"d  a"  *5*  ^  °f  the  “»«•  This' 

”  3n£e  Jort  of  independence  for  a  inde-e  to  claim  a  mwfr 
m  one  to  aa  contrary  to  the  will  of  all  the  reft.  ’  P 

I  have  never  been  of  that  arbitrary  hio-h  handed  d;r  r  • 
to  make  my  own  will  the  rn.e  of  t^Tt/t  /  £ £°  ne^ 

pendent  1  £2^ 

*  w.n,,  they  had  fenfe  and  fpiri.  to  re  lift  .t^'d'^uld  have 
S'  me  know  n,y  P'3"-  MyalTociates  and  I  have  afled 

*-  -i  r  r,1  ■* » » eisi  mzn  z*rs& 

fincefity,  as  ,f  I  were  {landing,  not  at  the  bar  of  eu-  c  “ 
but  at  the  bar  of  the  great  Gad,  the  fearcher  ofthe' hearts"  of 

declare,  that  in  my  whole  proceeding  fn  this  maner  TC.Caj‘°n’ 
other  motive,  but  to  protect  the  honour  of  my  place  atdthe 
Older  and  dignity  of  the  court  in  which  I  faf.  P  Of  this,  and 
of  tins  oniy,  am  I  guilty.  For  the  unworthy  motives  aferib 
ed  to  me  in  this  impeachment,  I  difclaim  and^ difdain.  /feet 


*  No.  2.  f  See  Appendix  No. 


o# 


I 


I 


t  121  ] 

that  my  mind  is  above  them,  and  I  truft  my  conduit  has  al¬ 
ways  been  above  them. 

Who  then  has  abufed,  who  has  u  attempted  to  degrade 
the  high  offices  of  prefident  and  judge,  to  tne  denial  and  pre¬ 
vention  of  pub'ic  right,  and  of  the  due  adminiftration  of 
juilice  ?  Who  has  fet  an  evil  example  to  others  ?  Let  the 
members  of  this  Senate  lay  t heir  hands  on  their  hearts,  and 
fay,  on  their  oaths,  whether  I  have  done  this. 

i  *  *  - 

Here  Mr.  Addiion  offered  to  read  in  argu  nent,  the  certi¬ 
ficates  of  the  aff.K.ia  e  judges  &c.  upon  which  Mr.  Rofs 
aroie  and  made  the  following  obfervatious. 

Mr-  Rofs  obferved  that  the  defendant’s  conduit  on  this  oc- 
cafion,  was  limilar  to  that  he  had  exhibited  in  the  cafe  of 
Judge  Lucas.  In  the  morning  when  he  prevented  that  gen¬ 
tleman  from  addreffing  the  grand  jury,  he  was  all  mildnefs, 
all  politenefs  ;  but  in  the  afternoon  he  was  threatening  and 
determined.  So  in  this  court  when  he  offered  thefe  certifi¬ 
cates  among  the  evidence  which  was  the  proper  time  to  confi¬ 
des  them,  finding  fome  oppofition,  he  politely  waved  the 
right  ;  now  he  experts  to  exhibit  them  in  a  fide  way  which 
we  are  bound  to  refill. 

Mr.  Dallas  rofe  to  fpeak,  when 

Mr.  Addifon  requeued  to  be  indulged  a  few  words. 

Mr.  Dallas  fat  down,  and 

Mr.  Addifon  proceeded.  The  Senate  muft  have  heard  me 
called  a  party  judge  ;  well  then,  if  thefe  certificates  of  fair 
and  impartial  conduct  as  a  judge  from  my  affociates,  lhall  be 
found  to  be  given  by  gentlemen  of  both  parties,  and  being  a 
party  judge,  is  made  a  crim  •,  ought  not  1  to  be  permitted  to 
exhibit  cei  tificates  from  the  other  party  to  do  away  fuch  im- 
preffion. 

General  report  may  be  given  in  evidence,  and  could  not 
witnefs  be  brought  in  to  lay  what  they  had  heard  the  other 
judges  fay  of  my  general  conduct  in  office,  as  well  as  g'eneral 
private  character.  What  better  than  certificates  from  fuch 
characters  ?  would  fuch  men  certify  falfehoods,  expecting  them 
to  be  publifiied  (  it  will  not  be  even  lnfinuated  that  they  would. 
I  wifli  to  read  them  here,  but  if  I  avn  prevented  while  there 
is  freedom  of  the  prefs,  they  are  fure  to  come  abroad,  they 
will  be  publifhed  to  the  world,  and  will  have  the  weight  there 
to  which  they  are  entitled. 

One  observation  more  and  I  have  done.  It  is  for  the  ho- 


[  12-2  ] 


nor  of  the  Hate,  that  I  fliould  be  acquitted,  if  I  am  really 
innocent,  more  than  it  is  that  I  fficuld  be  convifted,  even  if 
guilty, 

I  repeat  it  once  more,  that  this  court  are  not  bound  down 
to  the  drift  rules  of  evidence,  which  govern  a  common  court 
of  judice,  condituted  of  diltinct  judges  and  jurors. 

Mr.  Dallas.  I  agree  with  the  learned  gentleman,  that 
the  commonwealth  is  as  much  intereded  in  the  acquittal  of 
the  innocent,  as  it  is  in  the  conviftion  of  the  guilty.  But 
■whether  a  man  is  acquitted  or  convifted,  the  acquittal  or  con- 
■viftion  mud  be  the  work  of  legal  evidence.  I  would  afk  the 
learned  gentleman,  but  he  does  not  pretend,  he  does  not 
flake  bis  legal  reputation  as  a  lawyer,  if  what  he  offers,  he 
"would  himfelf  receive  as  legal  evidence.  I  am  certain  he 
would  not.  And  does  not  the  gentleman  know,  that  what 
Iheuld  be  admitted  here  as  legal  evidence  in  his  own  cafe, 
mud  be  received  in  the  cafe  of  every  other  citizen  ;  for  the 
law  knows  no  didinftion  of  perfons.  It  pays  no  more  regard 
to  the  charafters  of  prefidents  and  aflociate  judges,  than  it 
does  to  that  of  any  other  man. 

Suppofe  an  abufe  of  trud  in  a  more  honorable  charafter 
than  either  a  prefident  or  an  affociate  judge.  Suppofe  the 
prefident  of  the  United  States  to  commit  a  mifdemeanor  in 
office,  in  fome  cafes  he  might  from  an  extenfive  executive  in¬ 
fluence,  obtain  certificates  from  every  quarter.  When  he 
comes  before  the  Senate  on  impeachment,  fhall  he  rife  and 
fay,  I  have  certificates  of  good  charafter  from  every  quarter 
of  the  union,  other  dates  have  furnifhed  precedents,  they  re¬ 
ceive  them,  they  attend  to  them,  and  allow7  them  all  the  et- 
iefts  of  legal  evidence  ? 

Does  judge  Addifon  claim  more  than  others  ?  if  he  does  he 
is  not  entitled  to  his  claim.  Let  it  never  be  underdood  that 
privileges  of  this  kind  are  extended  to  the  judiciary,  dedruc- 
trve  of  the  great  principle  of  equality  on  which  our  condi- 
tution  is  founded.  Let  it  be  known  that  the  rules  of  tedimo- 
ny  adopted  in  our  courts  of  law7  upon  long  experience,  as  the 
greated  lecurity  to  the  pure  adminidration  of  judice,  are  not 
to  departed  trom  in  any  court,  and  produce  a  laxity- that  dif- 
folve  them. 

The  managers  were  judified  in  objefting  to  the  admiffion  of 
thofe  certificates  as  teftimony;  they  are  now  judified  in  oppofing 
their  being  read  in  argument :  General  reputation  it  is  faid 
n;ay  be  given  in  evidence.  A  man  can  only  .teftify  what  had 


[  123  } 


reached  his  own  ears4  direct  A.  may  fay  what  he  heard  B. 

fay  ;  this  is  general  reputation  ;  but  you  are  afked  to  receive 
certificates. 

The  defendant  fays  that  party  has  been  mentioned  ;  party 
ought  to  have  no  influence  here,  it  is  entirely  out  of  the  - 
queflion.  after  all,  as  he  has  broke  the  ground  of  general 
character  let  me  add  a  remark  to  fliew  that  it  might  do  an 
injury  even  to  himfelf  to  admit  fuch  tefiimony,  it  is  proba¬ 
ble  that  the  certificates  he  poffeffes  may  fpeak  in  favor  of 
his  talents  and  firmnels  ,  but  were  they  admitted  might  we 
not  prefent  certificates  of  a  different  complexion.  Is  he  fo 
fure  of  his  popularity  in  the  weflern  counties  as  to  fet  alt 
others  <it  defiance  ;  has  his  condu&  there  given  no  caufe  of 
complaint  ?  it  certainly  has  ?  or  the  gentleman  would  not  be 
Handing  in  his  prefent  fituation.  If  fuch  evidence  was  to  be 
admitted  on  this  occafion,  I  believe  it  would  have  fuch  an  ef¬ 
fect,  that  even  Felix  would  tremble. 

Mr.  Addifon.  Such  language  in  the  weflern-  counties, 
would  not  be  confidered  very  wife  or  very  prudent. 

Mr.  M‘Kean.  I  do  not  know  what  it  might  be  very  wife 
or  very  prudent  to  Hate  in  the  weHern  counties,  but  this  I 
know,  that  the  doctrine  laid  down  by  the  learned  judge, 
would  not  be  deemed  in  a  court  of  law,  either  verv  wife  or 
very  prudent.  The  law  of  evidence  is  clear,  all  courts  do 
and  this  Senate  will,  require  the  beH  evidence  the  nature  of 
the  cafe  will  permit,  and  is  within  the  power  of  the  oartv. 
Now  I  alk  if  this  gentleman  has  brought  himfeif  within  that 
rule?  is  this  the  beH  evidence  of  his  general  chafer  in  his 
power  to  produce  ?  If  certificates  of  this  or  any  other  una- 
thenticated  kind,  were  to  be  brought  before  him  as  a  judo-eof 
the  court,  to  lettle  an  objed  in  litigation,  he  would  have°to!d 
the  counfel  who  offered  them,  I  refer  you  to  the  attorney  Ge¬ 
neral,  Sc  what  could  he  have  anfwered  ?  Nothing.  The  adverfe 
counfel  would  juflly  obferve,  I  know  not  under  what  circum- 
Hances  thefe  certificates  have  been  obtained,  I  know  not  the 
characters  of  thefe  who  have  figned  them,  I  know  not  the  in¬ 
fluence  employed  to  obtain  them.  Influence  did  I  fay  ?  Yes 
influence.  What  influence  may  have  here  been  emploved  ?  a 
judge  who  may  have  been  in  the  habit  of  controling  counfel 
not  only  fo,  but  even  his  brother  judges  on  the  bench.  If 
this  influence  was  employed  upon  a  young  man  at  the  bar 
Who  wiflied  to  rife  in  his  profeflion,  he  would  probably  be 
afraid  to  expofe  his  future  endeavors  to  the  ferutiny  of  ail 
overbearing  judge.  He  might  enquire  what  fays  truth  but 
he  would  alfoliflen  to  the  voice  of  interefl  ;  and  what  lays  iu- 


[  124  3 


tereft  ?  I  have  a  family  to  fupport,  and  on  my  pra&ice  they 
depend.  But  does  not  my  practice  in  a  great  meafure  depend 
upon  ihe  countenance  of  the  bench  ?  thus  interefi  oppofes  du¬ 
ty  ;  what  may  be  the  refult  ?  He  mav  be  borne  down  at  the 
bar,  his  clients  leave  him  and  he  be  driven  to  feek  refource  in 
fome  other  purfuit. 

Again  is  this  the  beft  evidence  he  could  produce  ?  this  Se¬ 
nate  is  not  to  be  informed  that  certificates  are  fometimes  giv¬ 
en  like  loofe  expreflions  in  converfation,  w  ithcut  being  legally 
confined  to  the  truth.  Sometimes  certificates  are  fubl’cribed 
from  motives  of  humanity,  fometimes  from  tarneft  intreaty, 
but  in  neither  caie  would  fuch  fubfcription  be  obtained  were 
the  parties  on  their  oath  to  affeverate  the  tru  h  of  their  con¬ 
tents.  It  they  knew  that  wilfully  and  corruptly  abberrating 
front  the  truth  they  ft  bjeCled  tbemfelves  to  perjury  they  would 
often  hefitate,  often  decline  :  but  it  might  alfo  not  be  known 
to  the  fubfcribers  of  the  certificates  what  their  objecl  was 
intended  to-  be  ;  I  know  not,  the  managers  know  not,  who 
are  the  fubfcribers,  therefore  it  cannot  be  fuppoftd  that  there 
is  any  thing  perfonal  in  any  obfervation  ;  they  are  in  the  ab- 
firatt,  tending  to  fhew  the  nature  of  this  kind  of  evidence* 

There  is  another  rule  on  this  point  founded  in  reafon  and  jufti- 
fied  by  practice.  A  witnefs  on  the  examination  of  one  point  only 
may  know  much  in  favor  of  the  defendant  St  little  or  nothing 
againft  him  ;  we  never  hear  a  couniel  afk  of  a  witnefs  anv 
thing  but  what  he  expe&s  will  be  in  favor  of  his  client,  he 
never  afks  a  queftion  with  a  view  of  injuring  his  caufe,  but 
the  crofs  examination  brings  the  other  ,fide  into  view,  and  it 
often  happens  in  this  way  that  a  trial  takes  a  different  di¬ 
rection  and  comes  to  a  contrary  conclufion  to  what  was  firfl 
expeCted.  In  this  cafe  had  we  an  opportunity  of  examining 
viva  voce  the  perfons  who  have  fubfcribed  the  certificates, 
it  is  not  improbable  but  what  they  might  be  thought,  even 
by  the  defendant  as  better  omitted.  Suppofe  thefe  gentle¬ 
man  who  may  think  him  a  good  lawyer,  an  upright  judge  and 
even  approving  his  political  charges  to  the  grand  juries  ; 
were  to  be  alked,  did  you  know  at  the  time  of  ligning  the 
certificate,  that  judge  Addilon  had  prevented  a  brother  judge 
on  the  bench  from  delivering  his  opinion  to  a  grand  jury, 
when  it  was  h;s  right  and  he  if  differed  in  opinion  it  was 
his  duty  to  do  fo  ?  Do  you  know  that  he  menaced  this  brother 
judge  and  thereby  forced  him  from  the  bench  ?  what  would 
they  anfwer  to  this  interogatory.  Would  they  not  anfwer 
that  altho  he  had  confidered  himfelf  the  foie  organ  of  the 
court,  yet  he  was  in  this  infiance  an  overbearing  and  arbi- 
tary  judge. 


[  125  3 


0- 


The  defendant  has  complained  of  the  didance  at  which 
he  lives,  and  the  consequent  expence  in  bringing  forward  his 
witneffes  ;  this  as  was  heretofore  obferved,  is  no  other  incon¬ 
venience  than  would  have  had  to  be  borne  by  any  other  citi¬ 
zen,  under  parallel  circumdances.  Even  a  poor  fellow  who 
may  have  ftolen  a  pocket  handkerchief,  would  lie  under  the 
fame  difficulty,  and  would  have  to  bring  his  witneffes,  no 
matter  from  what  didance.  Certificates  could  not  be  admit¬ 
ted  in  his  cafe.  He  as  a  lawyer,  knows  all  thefe  difficulties, 
and  ought  to  have  been  prepared  to  meet  them  ;  he  cannot  be 
fo  devoid  of  friends  if,  as  he  infinuates,  he  polfeifes  fuch  es¬ 
teem  among  his  neighbors.  One  gentleman  has  attended  here 
on  behalf  of  Mr.  Acldifon,  as  he  informs  us,  without  folici- 
tation,  and  if  liis  general  reputation  was  to  be  relied  upon, 
as  the  great  means  of  defence,  the  prefumption  is,  that  a 
multitude  of  perfons  would  have  volunteered  in  his  behalf. 
Rut  is  general  report  in  his  favor  ?  do  the  petitions  againfl 
him  for  mal-adminidration  in  office  ?  does  the  evidence  here 
exhibited,  prove  general  report  to  be  favorable  to  him  ?  It  is 
true,  the  learned  gentleman  afks  us,  would  the  judges  and 
others  who  have  figned  his  certificates  fiign  a  falfhood, 
knowing  they  were  to  be  publifhed.  I  do  not  mean  to  charge 
thefe  gentlemen  with  fucli  difhonorable  conduvR.  What  they 
certify  may  be  true,  but  it  may  not  be  all  the  truth.  It  is 
faid  they  knew  the  papers  were  to  be  publifhed  ;  Why  this  ? 
was  it  to  influence  the  fubfcribers  through  fear,  that  if  they 
did  not  lend  their  names  to  this  kind  of  teftnnony,  they  were 
to  be  marked  out  ? 

This  honorable  body  are  fworn  to  decide  according  to  the 
evidence,  the  conftitution  and  the  law,  and  I  humbly  fugged 
they  will  not  receive  that  into  their  minds,  as  evidence  what 
is  not  evidence,  and  legal  evidence  alfo.  He  has  told  you, 
that  the  Senate  are  not  to  be  governed  by  the  fame  rules  of 
evidence,  as  governs  in  courts  of  law.  Did  I  underhand  him  ? 
How  is  justice  ?  Is  it  diflri'outed  by  two  different  rules  under  our 
conhitution  ?  It  is  impoffible  ;  where  is  the  other  rule,  where 
is  the  precedent  that  has  favored  it  ?  It'  he  furnifhes  neither 
rule  nor  precedent,  is  it  neceffary  for  me  to  ehablifh  by  ar¬ 
gument,  what  is  univerfally  known  and  admitted.  It  is  the 
practice  in  that  country  from  which  we  have  drawn  fome  va¬ 
luable  principles.  The  law  of  evidence  is  uniform  in  the 
Houfe  of  Lords,  the  Houle  of  Commons,  and  the  civil  and 
criminal  courts  in  England  ;  like  rules  pervade  our  fupreme 
and  inferior  courts,  no  other  is  known,  and  1  hope  no  other 
will  be  allowed  to  take  place  in  this  tribunal. 

Mr.  Findley.  The  certificates,  fo  far  as  I  have  under- 

R 


[  126  ] 


flood,  before  I  left  home,  go  to  hate  the  general  good  con¬ 
duct  of  the  prefident  ;  the  characters  who  have  figned  them 
are  men  of  great  integrity,  &  above  all  improper  influence  ; 
I  mean  fuch  as  were  obtained  in  the  county  of  Weflmore- 
land  ;  and  from  my  knowledge  of  them  I  know  they  would  not 
put  their  names  to  any  thing  which  was  not  correct  St  proper  ; 
but  I  doubt  whether  they  can  be  received  as  evidence, 
on  account  of  their  not  being  conformable  to  the  ufual 
rules  on  that  head.  I  think  little  good  or  evil  can  refult 
from  reading  them,  but  I  believe  it  fafeh  to  decline. 

Mr.  Addifon  faid,  he  meant  only  to  prefent  the  certifi¬ 
cates  of  the  alTociate  judges. 

Mr*  M‘Kean  faid,  that  the  admiflion  of  one  made  room, 
for  3,  4  or  7  or  more,  it  was  the  principle  he  flood  upon. 

Mr.  Rofs  faid,  if  this  teflimony  had  been  received  on  the 
fir  A  day  it  was  offered,  there  was  no  doubt  but  by  this  time 
it  might  have  been  rebutted  ;  but  as  the  teflimony  was 
doled  on  both  fides,  he  hoped  nothing  new  -would  be  ad¬ 
mitted. 

M  hitehill.  Standing  here  under  the  obligation 
of  an  oath,  and  bound  to  decide  according  to  the  evidence 
the  conftitution  and  the  law,  I  cannot  liften  to  any  thing 
which  is  not  evidence,  and  therefore  mull  oppofe  the  ready¬ 
ing  of  the  certificates. 

i  he  queftion  on  permitting  Mr.  Addifon  to  read  the  cer¬ 
tificates,  by  way  of  argument,  was  taken  and  lofl. 

YEAS. 

Mefirs.  Barton,  Ewing  and  Jones— 3. 

NAYS. 

MdTrs.  Findley,  Gamble,  Harris,  Hartzell,  Heifter, 
Johnflon,  Kean,  Lane,  Lower,  Lyle,  McArthur,  Mewhorter, 
Morton,  Pearfon,  Porter,  Reed,  Richards,  Rodman,  Steele, 
Whitehlll,  Maclay,  Speaker . — 21. 

Mr.  Addifon  then  proceeded. 

I  come  now  to  the  heavieft  part  of  my  talk,  to  wade  through 
that  rude  and  undigefted  mais  of  obloquy  which  it  has  pleafed 
the  counfel  to  heap  upon  me.  The  people  of  Pennfylvania 
will  in  this  cafe  have  caufe  of  congratulation  on  the  free 
courfe  of  the  adminiflration  of  juflice  in  this  fiate  ;  when  they 


[  m  ] 

fee  that  no  refpe lability  of  character  cr  ftation  can  fereen  a 
man  charged  with  an  offence  from  the  feverity  of  cenforious  de¬ 
clamation  equally  indulged  againft  a  preiident  of  a  court  at  t ne 
bar  of  the  Senate  as  againft:  a  horfe  thiet  at  the  quarter  iei- 
lions.  As  I  envy  neither  his  talents  nor  his  feelings  I  fba.l 
avoid  his  example.  He  has  indeed  fet  me  a  fevere  talk  to 
feleff  from  a  chaos  of  declamation  any  points  winch  can  be 
taken  up  and  purfued  in  a  regular  courfe  ol  reafoning  fati.- 
fa&ory  to  myfelf  or  to  the  Senate. 

My  temper,  my  conducl,  my  words,  the  whole  tenor  of  my 
official  duty,  the  general  bent  of  the  teftimony,  have  been  p- 
verted  mifeonffrued  and  mifreprefented  in  the  groffest  man¬ 
ner.  If  I  am  fmooth  it  is  all  art  ;  if  1  am  rough  it  is  all 
force  ;  for  criminal  in  any  way  I  muff:  be.  Is  not  this  place- 
ing  me  on  the  bed  of  Procruftes  to  which  the  gentleman  s 
poetical  embellifhment  might  have  fo  happily  alluded  ? 

In  fearch  of  refemblances  he  has  found  one  in  judge  Jeffries, 
a  name  ieldom  referred  to  but  as  proverbial  ol  cruelty  and 
oppreflion.  Is  this  paper  on  which  I  am  charged  fprinkled 
with  the  tears  of  the  widow  or  the  orphan  ?  Have,  the  cries 
of  the  oppreffed  reached  your  ears  ?  Have  1  been  noted  tor 
unjuft:  convi&ions  and  cruel  fentences  ?  Go  to  the  weftern 
country  and  alk. 

I  am  reprefented  as  a  violent  party  man,  a  tyrannical  judge, 
a  brow-beater  of  witneffes,  an  iniulter  of  parties  in  court, 
and  an  overbearer  ot  their  counfel.  Vv  here  is  there  any  evi¬ 
dence  of  this  ?  Men  of  all  parties  and  ni  all  profeffions  in 
the  weffern  country  have  declared  the  contrary.  Any  man 
who  fbould  fay  this  in  the  weftern  country  would  be  conlider- 
ed  as  not  very  wife  and  not  very  prudent. 

Words  firft  fpoken  by  Mr.  Lucas  and  repeated  by  me,  are 
charged  againft  me  as  my  words  and  perverted  in  conftrucxion. 
If  Mr.  Lucas  fays  I  differ  from  you,  and  1  fay,  he  and  I  will 
probably  often  differ  ;  is  that  evidence  of  determined  holh- 
lity  ?  If  he  fays  flop  me  and  take  the  i i He  on  yourlelf,  and  L 
fay,  I  will  take  the  rifk  on  myfelf ;  is  that  evidence  that  1 
was'eonfeious  of  doing  an  unlawful  act?  It  he  lay  how  will 
you  Hop  me,  and  I  fay  we  muff:  find  means  for  that  and  not 
be  overborn  by  you  ;  is  that  evidence  that  I  threatened  to^ 
fend  him  to  jail.  The  fir  11  time  I  heard  the  idea  fuggefted  of 
fending  him  to  jail,  was  when  I  was  told  that  Mr.  Bracken- 
ridge  abufed  him  becaiffe  he  had  not  perfifted  until  lie  pro¬ 
voked  the  court  to  fend  him  to  jail.  We  had  other  means  to 
flop  him  ;  precifely  thofe  which  we  adopted.  We  lent  away 


[  >28  ] 

the  jury.  That  was  the  only  means  we  intended  and  that 

was  fufficient. 

But  it  is  not  enough  to  pervert  teftimony,  law  too  mud  be 
perverted.  Becaufe  the  author  of  Eunomus  indru&s  a  jury 
to  'cgaid  what  is  laid  down  to  them  as  law  by  a  court  ;  one 
judge  mud  be  criminal  who  tells  a  jury,  that  what  another 
judge  has  laid,  has  nothing  to  do  with  the  o^eftion  before 
r o ^ I)1  *  Becaufe  it  is  laid  down  in  Bacon’s  abridgement 

Bac.  97,)  that  a  judge  is  never  anfwerable  for  an  error  in 
judgment  ;  and  to  this  annexes  a  marginal  note,  that  for  cor¬ 
ruption  he  is  anfwerable  in  the  flar  chamber  and  in  parlia- 
inent ;  the  book  is  read  as  if  the  note  were  a  continuation  of 
t-  text  leaving  out  the  important  words  “for  corruption 
an  made  to  lay  that  for  an  error  in  judgment,  a  judge  is  an- 
iwerable  in  parliament.  Becaufe  Hawkins  fays,  that  a  judge 
is  anlwerahle  in  parliament  for  any  thing,  and  gives  inftan- 
ces  of  notorious  corruption  and  proditution  of  authority  ;  he 
is  cited  to  convince  you,  that  you  may  punidi  a  judge  for  any 
thing  whatfoever.  And  becaufe  King  Alfred  (perhaps  by 
lus  own  authority)  hanged  many  judges,  (and  for  grofs  cor¬ 
ruptions)  Mr.  Dallas  by  citing  this  authority,  would  if  he 
ciuiit,  ted  you  that  you  ought  to  hang  me. 

.  ManY  of  the  cafes  _  cited  from  the  Englilh  books,  were  in 
times  when  the  conditution  ol  that  country  and  the  laws  and 
acimmidration  of  judice  there  were  not  fettled  on  the  re^u- 
lar  and  firm  bads  on  which  they  now  dand,  when  parliament 
reie rubied  the  tumultuous  arraignments  of  antient  Rome,  ra¬ 
ther  than  the  jud  and  rational  feat  of  Britidi  Themeis.*  Ma¬ 
ny  ol  them  were  in  times  of  ungoverned  violence  and  furious 
rage  of  power  and  party  fpirit.  Many  of  them  were  in 
times  when  the  judges  were  as  dependent  on  the  king 
as  a  day  laborer  on  his  employer,  and  could  be  turned  off 
:or  /i!a*  *ie  Pleafed>  and  called  to  anfwer  where  and  for  what 
he  pie  a  fed.  Many  of  them  were  cafes  of  impeachment, 
which  were  never  tried,  as  thofe  of  Lord  Find/  and  chief 

julhce  Scroggs.  Such  authorities  would  be  hided  out  of 
VVedminilter  hall. 

In  England  impeachments  will  lie  for  treafon  and  felonv 
and  judgment  ol  death  may  be  given  on  them.  Wherever 
our  condition  and  common  and  ftatute  law  is  the  fame  as  in 
England,  Englilh  authorities  deferve  refped.  Wherever  they 

yrei  L  iey  ^iave  no  wcigbt:.  We  have  a  conditution  which 
dehnes  and  regulates  impeachments  and  the  fubjeds  of  them. 

*  2  Vdooddes,  577 . 


[  129  ] 


By  that  we  muft  be  governed  and  not  by  Englifh  precedents 
founded  on  laws  totally  different.  On  this  conftitution  then 
this  Senate  will  fet  its  foot  and  fay  hitherto  we  will  go  and 
no  further.  By  this  conftitution  an  impeachment  will  lie 
only  againll  an  officer  and  for  a  mifdemeanor  in  office.  A 
mifdemeanor  in  office  is  ail  offence  :  and  an  offence  is  an 
unlawful  aft  done  with  an  evil  intention.  The  queftion  be¬ 
fore  you  is  whether  guilty,  or  not  guilty  :  and  there  is  no 
evil  intention. 

On  the  queftion  before  the  Affembly  in  the  year  1788, 
for  he  impeachment  of  the  judges  of  the  fupreme  court,  Mr. 
Findley,  then  a  member  of  the  legiftature,  has  juftly  and  for¬ 
cibly  fpoken  the  true  conllitutional  language  on  this  fubjeCt. 
“  Though  he  deemed  it  his  duty  to  pronounce,  that  the  de- 
cifion  of  the  fupreme  court  was  a  deviation  from  the  spirit 
and  letter  of  the  frame  of  government ;  yet  he  did  not  mean 
to  affert  that  any  ground  has  been  (hewn  for  the  impeachment 
of  the  judges.  But  on  the  contrary  he  agreed  that  Bribery, 
corruption,  or  wilful  and  arbitrary  infraction  of  the  law, 
were  the  only  true  causes  for  inftituting  a  profecution  of  that 
nature.”*  Such  was  the  law  of  impeachments  then  and  fuch 
is  the  law  of  impeachment  now.  Though  a  judge  aCts  unlaw¬ 
fully  and  unconftitutionally  ;  he  caunot  be  convidled  on  an 
impeachment,  unlefs  he  has  aCled  wilfully  l'o. 

Having  thus  dated  fome  of  the  perverfions,  of  teftimony 
and  of  law  made  by  Mr.  Dallas  I  will  now  examine  his 
reafoning  on  the  points  on  which  he  has  relied. 

1.  The  president  and  each  of  the  judges  are  equal  in  au¬ 
thority  like  the  speaker  of  a  house ,  the  chairman  of  a  commit¬ 
tee ,  the  foreman  of  a  grand  jury .  This  is  proved  from  the 
conftitution  and  the  law  eftablilhing  courts.  The  judges  be¬ 
ing  all  equal  none  can  control  any  other  ,  and  their  authori¬ 
ty  being  derived  from  the  conftitution  and  the  law  ;  no  more 
can  be  veiled  in  one  than  in  another,  nor  can  any  agreement 
among  themfelves  drip  one  judge  of  any  part  of  his  lawful 
authority,  and  veil  that  portion  of  it  in  another. 

I  do  not  objecl  to  thele  principles  but  to  their  aplication  to 
this  cafe.  Admitting  that  the  conftitution  gives  them  all 
equal  power,  when  they  come  together  may  it  not  neceffarily 
arife  out  their  union  on  one  fubject  that  they  lhall  laydown 
certain  rules  of  order  for  the  regulation  of  themfelves  in  their 
proceedings,  agree  that  certain  things  may  he  done  by  fome 
ol  themlelves  which  may  not  he  done  by  others.  For  inftance, 
by  long  eftablilhed  ulage  riling  out  of  an  exp  refs  or  implied 

*  1  Dallas  Rep,  335. 


[  130  ] 


agreement  among  themfelves  the  foreman  of  a  grand  jury 
figns  a  bill,  the  chairman  of  a  committee  announces  a  report, 
a  fpeaker  declares  the  rules  of  the  houfe,  and  a  prefiding  judge 
delivers  a  charge  to  a  grand  jury.  Thefe  duties  rife  not  out 
of  the  conflitution,  for  all  the  members  are  equal  ;  but  they 
flow  from  agreement  and  ufage  among  themfelves.  Admit¬ 
ting  that  the  conflitution  gives  equal  powers  and  duties  to  all, 
thofe  powers  are  by  the  conflitution  confined  to  official  du¬ 
ties  ;  and  though  no  agreement  or  ufage  could  change  their 
powers  and  obligations  in  official  duties  ;  it  does  not  follow 
that  by  confent  the  court  may  not  agree  to  do  fome  other 
things  not  flriftly  official  but  fuppofed  proper  and  give  the 
power  of  doing  that  to  one  of  their  members  exclufive  of  the 
refl.  If  the  thing  to  be  done  be  lawful,  or  the  conflitution 
does  not  hinder  them  from  doing  it,  nor  require  them  to  do  it ; 
the  conflitution  therefore  gives  no  right  ;  and  the  right  is  de¬ 
rived  from  the  agreement  of  the  members  and  is  regulated  by 
that  agreement  and  not  by  the  conflitution. 

<£  Equal  in  vote  they  are  on  official  duties.”  That  is  not  the! 
queflion  but  whether  fome  duties  do  not  belong  to  a  prefident, 
fpeaker,  chairman,  foreman  which  no  other  member  ought  to, 
perform  ;  and  thofe  duties  rifing  out  of  no  conflitution  no 
law  ;  but  the  rule  of  order  of  the  body.  The  dtfcharge  ofl 
fuch  duties  is  not  a  matter  of  confcience  on  the  afTociatej 
judge  on  which  he  is  bound  to  fpeak  his  opinion  publicly.  It' 
is  not  a  queflion  of  right  public  or  private.  It  is  a  queflion' 
of  order  concerning  only  the  body  of  the  court  and  fubjedl  to 
the  control  of  that  body  not  of  any  member  of  it.  It  is  ai 
matter  of  difcufiion  among  the  members  of  the  body. 

The  court  may  permit  their  prefident  to  do  certain  things 
which  they  do  not  permit  any  other  member,  and  in  doing  fo 
may  leave  the  manner  and  the  words  to  his  difcretion.  The 
Senate  may  direct  the  thanks  of  this  houfe  to  be  given  to  a 
certain  man.  The  words  and  manner  may  be  left  to  the 
fpeaker. 

The  court  of  Allegheny  county  permitted,  and  many  other 
courts  have  permitted  their  prefident  to  introduce  extraneous 
matter  into  charges  to  grand  juries.  Does  it  follow  from 
this  that  they  mufl  permit  every  member.  The  point  is  not 
whether  all  the  members  be  equal,  but  whether  the  body  can 
control  one  member. 

In  this  extraneous  matter  the  language  of  the  prefident  is 
not  the  language  of  the  court,  it  is  only  his  own  language  ;  it 
is  always  fo  underflcod,  and  the  confcience  of  no  other 


C  131  1 


member  is  touched  by  it,  nor  does  his  duty  bind  him  pub¬ 
licly  to  correct  or  fupport  it.  For  language  on  extraneous 
matter  the  preiident  alone  is  anfwerable.  If  any  member 
difapprove  of  this  practice  or  of  any  thing  improper  be  laid 
under  it,  this  is  a  matter  of  private  difcuffion  among  the 
judges,  not  of  public  to  the  jury.  The  court  have  per¬ 
mitted  it.  The  court  may  fupprefs  it.  The  prefident  to 
whom  it  is  given,  has  a  right  to  ufe  it  only  while  the  court 
permits  it.  I  gave  it  up  when  this  one  member  didented 
from  it ;  there  is  no  rcafon  that  in  difcufing,  eftablilhing 
or  fupprelfing  this  regulation  the  judge  fhould  be  in  court 
or  be  heard  by  the  public.  Ail  rules  of  order  in  their 
proceeding  are  framed  by  the  judges  in  private. 

This  was  the  rule  of  order  in  Allegheny  county  nine 
years  before  Mr.  Lucas  became  a  judge. 

In  all  matters  relating  to  the  immediate  duties  of  any 
jury  we  have  never  hindered  Mr.  Lucas  to  exprefs  his 
opinion.  In  every  thing  official  he  has  been  left  free  to 
exprefs  his  opinion,  diffent  approve  or  enlarge. 

Mr.  Dallas  firft  condemns  extraneous  matter  in  charges 
as  altogether  improper  and  unofficial,  and  then  proves  that 
Mr.  Lucas  has  a  right  to  ufe  it,  becaufe  he  has  a  right  to 
all  official  duties.  This  is  ftrange  reafoning. 

My  argument  is  that  no  judge  can  claim  it  as  a  right, 
but  courts  may  give  it  to  one.  They  have  given  it  to  the 
prefident,  but  to  no  other  member.  He  holds  it  by  the  per- 
million  of  the  court  only,  and  fo  long  as  the  court  permits 
it.  No  conftitution,  no  law  gives  it  to  any  other  judge. 
It  is  net  an  official  duty. 

The  prevention  in  Dec.  1800  is  not  before  the  Senate 
and  can  not  now  be  judged  of,  nor  any  opinion  or  fentencc 
of  this  Senate  now  patted  on  it.  I  was  obliged  to  prove 
it  to  {hew  that  Mr.  Lucas  then  knew  the  rule  of  order  of 

the  court. 

In  June  1801,  there  was  no  occafion  for  Mr.  Lucas  to 
sxprefs  his  opinion  to  the  public  on  my  charge  of  Dec.  1800. 
Hfe  had  done  fo  in  Dec.  1800  in  the  newspaper,  and  this 
his  now  read  is  not  the  lame. 

He  had  no  inducement  to  exprefs  any  opinion  in  June 
1801.  My  charge  was  free  from  extraneous  matter,  proper 
an  full  on  the  duties  of  a  grand  jury,  and  that  fubjedl  only. 

When  Mr.  Lucas  per fi fted  in  violating  a  rule  of  order  of  the 


C  132  3 


court,  what  was  I  to  do  ?  Sit  filent  and  fee  that  rule  broken  l 
Litten  to  what  the  whole  court  except  himfelf  had  forbidden 
he  fhould  fay.  It  was  a  formal  charge  previoudy  drawn  up 
not  relating  to  any  immediate  duty  of  the  jury  I  I  fhould 
have  infulted  the  other  judges  if  I  had  permitted  the  viola¬ 
tion  of  a  rule  which  they  had  all  edabliffied. 

I  did  the  only  thing  I  could  do,  I  left  the  court,  leaving 
him  at  liberty  to  fpeak  if  he  pleafed.  Had  he  gone  while  I 
fpoke,  I  fnould  not  have  defifted. 

Members  of  Affembly  have  felt  it  their  duty  to  leave  the 
Houfe  without  a  quorum  to  prevent  an  improper  meafure. 
The  quedion  is  not  whether  this  be  regular  or  not,  but  whe¬ 
ther  confcientious  or  not  ;  and  if  this  tranfaclion  be  without 
ill  intention  its  legality  is  not  now  before  the  Senate  ;  or  if  it 
were,  unlefs  it  can  be  proved  that  I  knew  it  to  be  unlawful, 
it  is  not  impeachable. 

It  is  the  prevention  in  June  1801,  and  that  only  that  is 
before  the  Senate.  Vfas  that  unlawful  ?  Did  I  know  it  to 
be  unlawful  ?  If  not,  no  preceding  circumdances,  nothing 
in  the  manner,  nothing  in  the  confequences,  can  make  it  an 
offence.  For  this  prevention  only  am  I  impeached.  It  is 
enough  for  me  to  Ihew  that  in  my  circurnftances  a  man  of 
competent  knowledge  might  honediy  believe  he  a&ed  right, 
unlefs  it  can  be  {hewn,  that  I  knew  I  adled  wrong.  An  in¬ 
dictment  never  was  ufed  to  try  a  difputed  right,  neither  can  j 
an  impeachment. 

But  it  is  faid  Ignorant ia  juris  neminem  excusat.  This  is 
true,  but  how  does  it  apply  to  an  officer  aCting  in  his  official 
capacity?  If  an  officer  were  to  fay,  I  knew  not  that  the 
law  forbade  me  to  violate  the  duties  of  my  office,  this  pre¬ 
tence  of  ignorance  would  not  excufe  him.  But  if  the  rule 
of  his  duty  was  doubtlul,  and  be  honediy  midook  its  true 
condruclion,  fuch  ignorance  would  excufe  him. 

In  the  cafe  put  by  the  attorney  general,  in  dealing  a  pock¬ 
et  handkerchief  ;  if  the  perfon  charged  could  fhew  that  he 
had  midaken  it  for  his  own,  that  he  had  one  with  fimilar 
marks,  but  had  not  obferved  fome  diferiminating  circum- 
dances,  he  mud  be  acquitted. 

And  fo  mud  I  though  this  Senate  fhould  think  I  enter¬ 
tained  a  falfe  opinion  of  the  law  unlefs  I  did  this  wilfully 
or  corruptly.  This  is  well  explained  by  chief  judice  Vaugh¬ 
an.  I  would  know  “  faid  that  judge,  whether  any  thing 
be  more  common  than  for  two  judges  to  deduce  contrary 


; 


t  133  ] 


and  oppofite  conclufions  out  of  the  fame  cafe  in  law  ?  Is 
any  thing  more  known  than  that  the  fame  author  and  place 
in  that  author  is  forcibly,  urged  to  maintain  contrary  con¬ 
clufions  and  the  decilion  hard  which  is  the  right  ?  Is  anv 
thing  more  frequent  in  the  controverfies  of  religion  than  to 
prefs  the  fame  text  for  oppofite  tenets  ?  How  then  comes 
it  to  pals  that  two  perfons  may  not  apprehend  with  reafoti 
and  honefly  what  a  witnefs,  or  many,  fay,  to  prove  in  the 
undemanding  of  one  plainly  one  thing  ;  but  in  the  appre- 
henfions  of  the  other,  clearly  the  contrary  thing  ?  Muff 
tiierefore  the  one  ot  thefe  merit  fine  and  imprifonment,  be- 
caufe  he  doth  that  which  he  cannot  other  wife  do  preferving 
his  oath  and  iategrity  ?  And  this  often  is  the  cafe  of  the 
judge  and  jury”  Bufliel’s  cafe  Vaugh.  141. 

2.  Tbs  ccrnrt  was  broken  up  riotously  fas  Mr.  Balias 
chooses  to  express  it)  and  all  subsequent  proceedings  are  void . 
This  is  no  lpecific  charge  again (l  me.  The  Senate  is  not 
fworn  to  try  it  and  cannot  give  a  verdidl  or  judgment  againfi: 
me  for  it.  I  am  not  therefore  bound  to  j edify  or  anfwer 
it  as  lawful  or  unlawful  and  it  can  be  conlidered  only  as 
evidence  of  ill  intention. 


Solemnities  are  ufual  but  not  necefTary  to  adjourn  a  court. 
Courts  are  often  adjourned  without  them.  Clerk  may  fay 
the  c*mrt  is  adjourned  to  fuch  a  time.  Any  judge  may  fay 
fo.— Any  perlon  may  fay  fo  by  direction  of  the  court.  One 
judge  may  fay  it  is  my  opinion  that  the  court  be  adjourned 
to  fuch  a  time,  and  then  go  away,  and  if  the  other  judges, 
lay  nothing  and  go  away  the  adjournment;  is  conipleat.  Mr* 
Lucas  did  fo.  He  left  the  court  immediately  without 
publicly  difienting.  The  adjournment  then  was  conipleat. 
This  was  either  an  adjournment  or  it  was  not.  If  it  was  an 
adjournment — all  was  well.  If  it  was  not  an  adjournment 
the  court  remained.  Would  any  voluntary  or  accidental 
going  out  of  the  judges  without  intention  to  break  up  the 
court,  be  a  breaking  up  of  the  court  !  Will  any  thing  be 
a  breaking  up  ol  the  court  but  a  feparation  of  the  judges 
tor  that  purpole  !  ^  here  is  no  danger  that  any  proceedings 

of  the  court  of  Allegheny  county  in  June  180!  vyili  ever 
be  held  void. 


I  he  true  queftion  is,  did  I  go  away  to  effeA  a  purpofe 
which  I  knew  to  be  unlawful. 

3.  It  is  made  part  of  the  argument  againfi  me  that  I  have 
clivered political  charges.  This  is  true  fir,  and  every  thing 


S 


i 


[  134  ] 


that  I  have  clone  in  this  way  is  in  print.  If  the  approbation 
of  the  greatefl  man  in  America  be  any  evidence  of  their  ufe- 

fulnefs _ or  if  my  publilhing  them  be  any  evidence  of  my 

opinion  of  their  innocence,  none  of  them  will  ever  be  brought 
as  proof  of  an  ill  defign  in  me  ;  and  this  is  the  only  ufe  that 
can  be  made  of  them  here.  For  the  Senate  will  fee  that 
this  is  no  lpecihc  charge  againfl  me,  I  am  not  tried  on  it, 
and  this  Senate  cannot  convid  or  acquit  me  on  this  ground. 

The  time  was  that  my  doing  this  was  thought  ufeful.  Who 
can  fay  that  fucli  time  may  not  come  again  !  May  I  not  hold 
out  the  example  of  danger  and  miichief  in  other  countries  as 
a  warning  to  curfelves  f  May  I  not  point  out  the  fymptoms  of 
an  approaching  ftorm,  before  it  burll  ? 

As  to  the  charge  of  December  1800,  of  which  fuch  horrid 
account  has  been  made,  you  have  it  from  the  recolledion  of 
Mr.  Lucas,  after  an  interval  of  two  years.  Is  this  to  be  re¬ 
lied  on  as  a  juft  flatement?  It  "was  approved  of  by  other  of 
my  affociates  and  men  of  moderation.  I  printed  it.  Would 
I  have  done  this,  if  I  had  thought  it  fuch  as  it  has  been  re¬ 
tire  fen  ted  here. 

* 

If  I  have  fupported,  by  any  opinions  of  mine,  the  former 
adminiltration,  I  am  equally  difpofed,  in  like  raannei,  to  fup- 
port  the  prefent,  on  ail  occafions  jultified  by  my  judgment 
and  confcience. 

But  I  will  not  introduce  altercation  on  the  bench  ;  and  I 
abandoned  this  pradice  when  the  difapprobation  of  a  fingle 
affociate  was  manifefled. 

4,  The  opinion  of  the  supreme  court  on  the  motion  for 
the  information  is  cited  as  an  authority  for  this  profecution  ; 
and  a  newspaper  printed  in  Mr  Brackenridges  houfe  contain¬ 
ing  a  ftatement  of  this  opinion  marked  in  the  handwriting  of 
Mr.  Lucas,  “  Mr.  Brackenridge’s  flatement  of  the  proceed¬ 
ings  of  the  fupreme  court  againfl  Addifon,”  is  read  as  evidence 
of  this  opinion.  This  flatement  deferves  no  credit,  becaufe 
both  it  and  another  newfpaper  containing  a  flatement  plainly 
made  by  the  fame  hand,  and  a  third  newfpaper  read  by  Mr. 
Dallas,  plainly  fhew  Mr,  Brackenridge’s  enmity  to  me,  his 
influence  over  Mr.  Lucas,  his  operation  upon  him  on  other 
occafions,  and  in  the  whole  of  this  tranfadion  in  fetting  him 
on  to  deliver  charges  to  jurie,  in  the  motion  for  the  informa¬ 
tion,  and  in  the  petitions  which  gave  rife  to  this  impeach¬ 
ment.  This  newfpaper  carries  no  credibility,  nor  is  it  any 
evidence  that  lever  knew  the  opinion  of  the  fupreme  court. 


There  is  a  ftatement  by  another  judge  very  different  from 
this,  and  far  more  credible. 

It  aooears  from  Mr.  Lucas’  affidavit,  that  the  cafe  was  not 
put  fairly  to  the  fupreme  court,  therefore  the  opinion  ot  the 
court  in  that  cafe,  is  no  authority  in  this. 


From  the. argument  of  the  attorney  general,  it  appears  the 
uniform  ufage  that  the  p refi^ng*  judge  delivers  charges  to 
grand  juries.  Frdhn  that  argument  and  from  the  opinion  ot 
the  court,  it  appears  that  the  a&  complained  of,  was  conli- 
dered  a3  my  act.  No  ma  x  will  believe  that  the  chief  juLice 
ufed  the  harfh  epithets  which  Mr.  Mrackenridge  puts  in  hu 
mouth  again  ft  me,  on  an  exparte  affidavit  which  I  hau  no 
opportunity  to  contradict. 

The  argument  of  the  attorney  general,  and  the  words  of 
the  court,  even  as  ftated  by  Mr.  Brackenridge,  plainly  imp  y 
that  I  ftopt  Mr.  Lucas  from  addreffing  the  ^  jury  on  their  du¬ 
ties;  and  that  this  would  have  been  indidtable,  it  done  with 
an  evil  intention,  and  only  if  fo  done. 


The  fa&  is  otherwife  1  The  court  ftopt  him  from  addreffing 
the  jury  on  things  not  relating  to  their  duties .  It  cither  I 
or  the  court  flopped  Mr.  Lucas  in  delivering  mattei  to  a  jui) 
not  relating  to  immediate  duty,  no  unlawful  act  was  done. 

It  is  queftionable  how  far  the  opinion  ot  one  court  can  con¬ 
trol  the  rules  ot  order  of  another.  But  without  refling  on 
this  ;  no  exparte  opinions,  no  expreffiono  y  t  le  >  e,  po.^en 
by  the  wifeft  judges,  were  ever  confidered  as  authorities. 

^'But  the  authority  of  this  cafe',  on  the  only  point  on  which 
they  made  a  judicial  decition,  is  decifive  m  my  favor.  Ad¬ 
mitting  fay  they,  that  the  fads  are  as  Mr.  Lucas  has  hated, 
they  do  not  prove  an  offence.  There  is  nothing  in  it  which 
fhews  that  an  impeachment  would  lie  againll  me.  ihe  con¬ 
trary  opinion  plainly  follows  ;  tor  it  dates  that  neither  infor¬ 
mation  nor  indictment  will  lie,  becaufe  there  was  no  malice, 
no  evil  intention  made  appear.  If  fuch  had  appeared,  the 
rule  to  fliew  caufe  would  have  been  made,  and  if  on  it  I 
Could  not  have  juftified  or  excufed,  an  information  would 
have  been  ordered  again  ft  me.  The  opinion  ot  the  court 
fhews  that  an  information  and  indictment  are  the  fame,  ami 
that  neither  of  them  lies  but  for  an  oiFence.  Impeachment 
is  like  them,  a  profecution  for  an  offence,  a  mitdemeanor  m 
office,  an  unlawful  a£t  done  with  an  evil  intent  in  official  ca¬ 
pacity.  And  for  this  the  impeached  perfoA  may  alio  b#  in¬ 
dicted. 


t  136  ] 


O.  It  is  raid  that  your  acquitting  me  establishes  my  right 
to  end  Mr.  Lucas  to  gaol ,  to  break  up  the  court  riotously 
oc*  “  ^Hablifhes  no  luch  right.  No  criminal  profecution 
can  eftablifh  any  right.  It  does  net  even  eftablifh  that  I 
acted  lawfully.  It  can  only  eftablifh  that  I  aded  without 
an  ill  intention.  For  unlefs  you  find  an  ill  intention,  you 
cannot  convidl.  Such  is  the  whole  tenor  of  authorities  and 
bod  forbid  it  fhould  be  otherwife.  Make  it  otherwife  and 
what  follows  r  Every  judge  in  Pennfyl vania,  muft  balance 
Ins  cftice  againft  his  confcience.  If  he  decide  according  to 
his  confcience  he  may  lofe  his  office,  if  the  Senate  think 
coherently.  If  he  decide  againft  his  confcience  he  may  pre¬ 
serve  his  office.  Is  this  the  hate  of  mind  in  which  you  wifh 
to  place  the  judges  when  they  are  making  up  their  deter¬ 
mination  Such  I  trufl  has  been  the  tenor  of  my  whole  of¬ 
ficial  condud  as  hated  to  you  in  evidence,  and  known  in  the 
weftern  country,  that  no  evil  intention  can  be  fairly  inferred 
irom  this  tranfadion. 

In  the  whole  of  Mr.  Dallas’s  argument  and  management 
of  tois  profecution,  I  have  not  found  that  candour  which 
I  would  have  expeded  from  a  man  who  refpeds  his  prefef- 
fional  charader.  I  expeded  that  he  would  fairly  admit  that 
an  infoimaticn,  an  indidment,  and  an  impeachment,  are  all 
criminal  preventions  founded  on  an  offence  which  muft  con- 
inf  o.  an  unlawful  ad  dene  with  an  evil  intention. 

I  expeded  that  he  would  fairly  admit  that  no  criminal 
profecution,  no  adion,  no  proceeding  whatever  can  be  main¬ 
tained  agamft  a  judge  for  an  error  in  judgment  ;  none  un¬ 
lefs  he  has  aded  wilfully  wrong. 

I  expeded  he  w'ould  have  exprefly  declared  that  they 
meant  to  urge  nothing  as  a  fpecific  offence  that  was  not  al- 
ledged  in  the  articles  of  impeachment.  Yet  he  has  relied 
on  “  political  charges and  w Riotous  breaking  vp  of  the 
court f  as  unlawful  ads,  when  he  ought  only  to  have  con- 
iidered  thole  things  as  evidence  cf  an  evil  intention  in  the 
unlawful  ad  laid  fo  far  as  it  was  conneded  with  them. 

I  expeded  he  would  have  abandoned  the  firft  article  as 
"unfupportable  ;  as  not  ftating  any  unlawful  ad  ;  For  where 
there  is  no  unlawful  ad  it  is  immaterial  whether  the  in¬ 
tention  be  good  or  evil. 

%  *his  I  think  he  would  have  done  in  any  of  the  or¬ 
dinary  courts  ol  juftice,  or  he  would  have  received  the 
repiobation  of  the  court  and  of  his  brethern  of  the  pro- 


t  137  ] 


feffion.  How  far  his  conduct  here  be  confident  with  re- 
fpedl  for  his  own  character  is  for  him  to  judge. 

If  I  have  fucceedect,  as  I  trud  I  have,  in  fatisfying  this 
Senate,  that  the  articles  of  this  impeachment  are  light  ;  and 
f  that  the  examination  of  them  diews  no  guilt,  no  unlawful  add, 
no  evil  intention,  no  fault,  no  mifcondud,  no  miftake  ;  it  may 
be  natural  to  afk  whence  the  petitions  againd  me  and  whence 
this  impeachment  ? 

As  all  information  refpecting  the  petitions  was  refufed  me 
lad  lellion,  I  had  no  opportunity  of  enquiring  into  the  cha¬ 
racters  of  the  petitioners.  Many  of  them  may  have  been  the 
very  dregs  of  the  fociety  ;  they  may  have  been  picked  up  on  the 
highway,  or  in  taverns  ;  drangers,  boys,  and  lilly  men  ;  they 
may  have  neither  known  nor  regarded  what  they  figned  ;  they 
may  have  been  feduced  by  falfe  pretences  to  let  down  their 
names.  Who  will  fay  that  all  this  did  not  take  place  !  I 
am  well  informed  that  all  this  did  take  place.  What  mea- 
lure  lo  abiurd,  that  petitioners  for  it  cannot  be  obtained  1 
Sir,  petitions  can  be  got  to  burn  this  houfe,  “the  gorgeous 
palace,  the  foleinn  temple,  the  great  globe  itfelf,  and  all 
who  it  inhabit”.  W  ho  does  not  know  the  grofs  proditution 
of  petition  !  The  petitions  fliew  the  names  and  number 
of  figners  ;  but  not  the  names  and  number  of  thofe  who  re¬ 
fufed  to  fign,  and  reprobated  the  attempt  as  fcandalous.  And 
of  the  figners,  I  venture  to  fay,  nine  out  of  ten  would  fign 
a  petition  againd  the  whole  of  this  proceeding.  After  all 
what  do  the  petitions  amount  to  ?  Out  of  a  diftrict  of  nearly 
fixty  thoufand  taxable  inhabitants  the  fedulous  indullry  of 
two  years  has  procured  680  figners  to  the  petition  againd 
me  !  But  fuppofiug  that  the  petitions  fliew  a  difpofition  in 
many,  to  have  me  removed  from  office  ;  that  may  be  evi¬ 
dence  not  of  my  mifconduct,  but  of  their  enmity. 

Ho  man  can  be  lefs  qualified  than  I,  for  avoiding  unpo¬ 
pularity.  1  have  no  tade  for  intrigue,  no  difpofition  for 
flattering  tne  follies  or  palnons  of  men  j  no  propcnfity  to 
lalle  arts  ;  no  de fire  of  revenge,  to  fpur  my  invention  of 
means  to  oppofe  my  adverfaries.  I  am  no  hunter  of  popu¬ 
larity  ;  no  bender  to  the  prejudices  of  the  day.  In  a  republi¬ 
can  government,  it  ought  to  be  deemed  the  honour  of  an 
officer,  to  difcharge  his  duty  with  fidelity,  regardlefs  of  fa¬ 
vour  or  refentment  ;  to  be  guided  by  the  laws  and  inte- 
red  of  the  country,  not  by  popular  prejudices,  paffions,  or 
opinions  ;  and  to  purlue  the  public  good,  whether  public 
favour  followed  it  or  not.  On  fuch  principles  and  condudt 
have  I  reded  my  official  reputation  ;  and  not  on  trimming 


[  133  ] 


my  fails  to  the  gale  of  popularity,  or  fnifting  my  courfc 
with  the  tide  of  the  times.  And  fcorning  to  flatter  any  man,  * 
to  court  any  man,  or  to  yield  to  any  man  ;  I  lefled  my  iecurity 
on  the  integrity  and  propriety  of  my  official  conduct.  Such 
principles  and  conduct  will  always  mAe  enemies,  and  often 
be  defencelefs  againft  them.  How  then  could  1  he  without 
enemies,  and  not  need  defence  I 

In  lefs  than  the  fpace  of  twelve  years,  in  the  courts 
©f  that  circuit,  how  many  offenders  rnuft  have  been  brought 
to  juftice  :  how  many  fraudulent  perions  muff  have  been  ex- 
pofed  ;  how  many  dil appointed  fuitors  muft  have  been  fent 
away  diffatisfied  !  Among  ail  theie,  h o w  mai  y  enemies 
mu  ft  have  fprung  up  againft  me  ? 

Some  years  ago,  as  a  judge  of  an  election,  I  rejeoed  the 
votes  of  aliens,  and  gave  notice  to  an  a  hen,  who  (knowing 
that  he  was  an  alien,  and  that  his  eledion  would  be  oppokd 
on  that  ground,)  procured  himfelf  to  be  choien  a  member  of 
AiTembly,  that  a  petition  would  be  lent  down  again!!  his  ad- 
miffion/  He  circulated  a  report,  as  ialie  as  it  was  fhamelefs, 
that  I  had  formed  a  fcheme  to  exclude  all  the  Irish  from  vot¬ 
ing  ;  and  circulated  petitions  to  the  Aflembly  againft  me. 
My  only  fault  was  protecting  the  laws  of  tne  flate  fiom  vio¬ 
lation  :  but  it  made  me  many  enemies. 

The  unfortunate  law  cf  1792,  opened  the  xand  office  for  jj 
the  land  weft  of  the  Allegheny  river.  Unfortunate  I  call  it, 
becaufe  it  neceffarily  introduced  difputed  titles :  and,  where¬ 
ver  difputed  titles  to  land  exift,  all  morality,  all  integnty, 
and  all  confidence,  will  be  banifhed.  Befides  the  two  clafh- 
inrr  titles,  by  warrant  and  by  fettlement,  neceffarily  fpring- 
irg  out  of  the  law,  a  variety  of  other  claims,  or  a  diverftty 
cf  thofe  not  contemplated  by  the  law,  fprung  up.  Claims, 
doarines  and  opinions  of  the  wildeft  nature,  from  the  vague 
andfill  defined  terms  of  the  law,  were  advanced  ;  and  the 
whole  country  was  filled  with  difputes,  pallions,  and  breacheb 
of  the  peace.  A  ferious  and  important  duty  devolved  on  the 
court  of  Allegheny  county,  to  put  a  rational  and  juft  con- 
ftruclion  on  this  law,  and  form  a  fyftem  of  titles  under  it.  In 
doing  this,  among  fo  various  claims,  many  perfons  muft  have 
fuppofed  themfelves  injured,  and  every  offended  perfon  would 
become  an  enemy.  I  had,  however,  the  fatisfaftion  to  find 
almoft  every  opinion,  delivered  by  the  county  court,  ianc- 
tioned  by  the  judges  of  the  fupreme  court. 

With  all  thefe  and  other  fources  of  enmity  open  agamft 
me,  are  petitions  evidence  of  mifeondud  ?  Does  not  a#pre- 
iumption  in  my  favor  arife  from  their  not  being  more  numer-  f 


[  539  ] 

fsu*?  Such  lias  been  the  propriety  of  my  official  condufl,  fuch 
its  luperiority  over  cenfure,  fuch  (let  me  be  indulged  in  faying 
it,)  is  the  confidence  of  men  of  integrity  and  underftanding, 
of  the  country  in  general,  in  me  ;  that  men  otherwife  un¬ 
friendly,  men  of  all  feds  and  parties,  openly  profefs  their 
confidence  in  me  as  a  judge,  and  their  preference  of  me  to 
any  other.*  Nor  would  thofe  petitions  ever  have  exifled,  nor 
this  profecution  ever  been  attempted  ;  but  for  the  enmity  of 
a  man,  who  would  facrifice  every  thing  refpeflable  in  life, 
to  the  gratification  of  his  malice. 

Unlefs  I  am  very  much  deceived,  I  think  it  is  impoffible, 
that  any  reafonable  man  can  fee,  in  this  impeachment,  any 
appearance  of  guilt,  any  appearance  of  illegal  conduct,  and 
ill  intention,  fnpported  or  exhibited.  Where  then  lies  my 
criminality  !  Where  is  any  plain  known  rule  of  law  violat¬ 
ed  by  me  1  Am  I  to  be  judged  by  the  opinions  of  others, 
which  may  be  as  erroneous  as  mine,  without  any  fettled 
known  flandard,  to  try  both  !  Wherever  a  man  is  tried  lor 
an  aft,  which  there  was  no  previous,  plain,  known  law  to 
forbid,  he  is  tried  for  that  which  is  no  offence  ;  for  it  is  no 
wilful  breach  of  any  exifting  law.  Wherever  the  law  lies 
concealed  in  the  breaft  of  the  judges,  and  is  only  pubhhied 
after  the  tranfgreffion  of  it  is  enquired  into  ;  the  man  charg¬ 
ed  as  an  offender  is  proceeded  again  ft  without  any  law,  and  a 
law  ex  post  facto  is  made,  to  punilh  that,  which,  when  it  was 
done,  was  no  offence.  If  there  be  any  law,  any  precedent 
for  making  what  I  am  charged  with  an  cflence  ;  why  is  it 
not  produced  !  I  never  knew  it,  never  heard  of  it  :  and  lhall 
I  be  punilhed  for  offending  againft  a  law,  which  I  never 
knew,  never  heard  of,  and  no  raan  can  now  ffiew  me  !  Is  this 
Senate  to  be  converted  into  a  flar  chamber,  and  judge  by  ar¬ 
bitrary  laws  of  their  own  making  of  propriety  and  impropri¬ 
ety  of  conduft,  applying  thofe  laws,  ex  post  facto ,  to  previ¬ 
ous  tranfa&ions.  The  Senate  of  next  year  may  think  dif¬ 
ferently  from  the  Senate  of  this,  and  the  Senate  of  the  t ol¬ 
io  wing  year  from  both.  No  officer  of  Pennfylvania  will  be 
fafe  ;  and  this  chamber  will  be  a  trap  or  pit-fall,  which  what¬ 
ever  officer  enters,  will  tumble  into  covered  dangers,  which 
no  prudence  could  forefee,  and  no  innocence  difarm.  The 
tyranny  of  the  liar  chamber  in  England  will  be  revived  in 
Pennfylvania,  and  punifhments  will  be  infliffed,  not  becaute 
known  laws  have  been  ti  anfgreffed,  but  becauie  the  judges 
think,  that,  fomehow,  wrong  has  been  done,  though  it  was 
never  known  to  be  wrong,  till  they  pronounced  the  ientence. 
This,  in  my  opinion,  is  the  elfence  ot  tyranny,  and  the  more 
infulting  as  covered  with  the  form  of  law* 

*  See  Appendix  No.  III. 


£  MO  ] 


Let  republican  Legiflators  watch,  left  the  firft  fymptoms 
of  tyranny,  in  a  republican  government,  appear  in  the  Legi¬ 
flature  :  for  having  the  inoft  power,  it  will  have  the  moft 
pride.  Let  them  watch  left  the  firft  victim,  in  its  pro- 
g-refs  to  tyranny,  be  the  judiciary  :  for  it  is  the  moft  effica¬ 
cious  check  on  the  legiflature.  While  the  judiciary  can 
maintain  its  authority,  (and  it  is  of  all  the  branches  the 
moft  helplefs  to  itfelf,  but  the  moft  effedual  to  the  others 
and  to  the  people)  liberty  is  fafe.  When  it  falls,  liberty 
muft  fall  with  it.  There  is  to  be  guarded  againft  in  the  legi- 
flative  branch,  a  tendency  to  pride,  to  a  haughty  affumption 
of  fuperiority  over  the  other  branches.  While  this  fubfifts 
liberty  muft  always  be  in  danger  :  for,  if  this  fpirit  be  in¬ 
dulged  and  prevail,  the  whole  power  of  government  may  be 
ablorbed  in  one  branch,  and  arbitrary  power  will  follow  of 
courfe.  Members  of  the  legiflature,  who  regard  liberty,  will 
rejoice  to  lee  men  in  the  other  branches  of  the  government, 
who  will  not  flatter  them,  who  will  not  yield  to  them,  who 
will  oppofe  them.  They  ought  to  cherilh  andfupport  fuch 
men,  as  the  friends  of  liberty,  and  of  republican  government  : 
for,  in  the  fpirited  maintenance  of  the  authority  of  each  branch, 
confifts  republican  liberty.  But  if  ever  in  a  republican  coun¬ 
try  the  legiflature,  proud  of  its  power  and  of  its  proximity  to 
the  people,  with  the  power  of  impeachment  and  ccnl'equent 
removal  in  its  hands,  take  upon  it  to  judge  of  the  executive 
and  judiciary  according  to  its  own  opinions  formed  without 
any  previous  plain,  and  known  rule  of  law  ;  I  venture  to 
fay,  that  no  governor  and  no  judge  in  that  country  can  dare 
to  fay,  that  he  will  hold  his  office  a  day  longer:  the  whole 
power  of  government  will  be  abforbed  by  the  legiflature  ; 
arbitrary  power  will  be  eflablifhed  in  that  branch  ;  and  it 
and  the  ftate  may,  like  France,  fall  a  prey  to  an  intriguing 
demagogue,  or  a  military  ufurper. 

Such  conjectures  may  feem  extravagant.  Eefore  mens 
hearts  are  corrupted  by  the  pride  of  abufed  power,  they 
lhudder  at  the  fuggeftion  of  iniquity,  which,  they  will  after¬ 
wards  work  with  greedineis.  The  fervant  of  the  king  of 
Syria  enquired  of  the  prophet,  (who,  with  the  eye  of  fpiritual 
vifion  feeing  into  futurity,  wept  at  the  calamities,  of  which 
this  man,  fo  humble,  would  be  the  author  ;)  «‘Whey  weepeth 
my  lord.”  The  prophet  anfwered  ;  “Becaufe  I  know  the 
evil  that  thou  wilt  do  to  the  children  of  Ifrael  ;  their  ftrong 
holds  wilt  tbofe  fet  on  fire,  and  their  young  men  wilt  thou 
flay  with  the  iword,  and  wilt  dafii  their  childern,  and  rip 
up  their  women  with  child”.  Shocked  at  a  picture  fo  abo¬ 
minable  of  himfelf,  and  fired  with  an  honeft  indignation  a- 
gainft  fuch  horrid  cruelty,  Hazael  faid.  «  But  what,  is  thy 


V 


[  U1  ] 

fervent  a  dog,  that  he  fhould  do  this  great  thing  ?”  When 
men  enter  into  the  path  of  iniquity,  they  cannot  tell  the 
length  to  -which  they  will  proceed  ;  and  if  they  would  redrain 
theinfelves,  they  muff  Hop  at  the  entrance.  Injudice  is  ma¬ 
gical  ground,  on  which  they  will  be  hurried  along  as  by  en¬ 
chantment  ;  it  is  a  whirlpool  which  will  tofs  them  around 
till  they  are  wrecked  on  a  Scylla  or  Charibdis. 

The  governor,  the  other  judges  and  officers  of  this  Hate 
may  (land  indifferent  fpeCtators  of  this  profecution.  Some 
of  them  may  even  promote  it,  and  think  that  it  is  only  my 
trial,  and  that  they  have  no  concern  or  intered  in  my  acquit¬ 
tal.  But  they  are  midaken  ;  it  is  their  trial  as  well  as  mine. 
Is  there  one  among  them  who  can  fay,  that  he  has  done  noth¬ 
ing  more  exceptionable  than  what  I  am  charged  with  ?  Is 
there  one  among  them,  who  can  produce  more  honourable 
tedimonials  of  the  propriety  and  ufef-ulnefs  of  their  conduct 
in  office  ?  Innocent  as  I  know  myfelf  to  be,  and  light  as 
this  accufation  againd  me  mull  appear,  if  I  be  convicted  on 
this  impeachment,  (I  repeat  it,  and  let  it  be  remembered)  there 
is  not  an  officer  in  Pennfylvania  fafe. 

u  ’Twill  be  recorded  for  a  precedent  ; 

And  many  an  error,  by  the  fame  example, 

Will  ruffi  into  the  date.” 

I  view  myfelf  {landing  in  an  important  light  before  you,  to 
plead,  not  my  own  caufe  only,  but  the  caufe  of  the  whole  ju¬ 
diciary,  the  caufe  of  the  whole  executive  ;  and  to  claim  the„ 
protection  of  the  Senate  for  all  the  officers  of  Pennfylvania 
againd  the  hally  paffions  of  the  houfe  of  reprefentatives.  You 
are  fee  here  by  the  confutation,  to  check  the  raffinefs  of  that 
lioufe  ;  and,  that  you  may  perform  this  duty  with  more  free¬ 
dom,  and  be  lefs  influenced  by  the  paffions  of  the  day,  grea¬ 
ter  duration  is  given  to  your  appointment.  The  power  of 
trying  impeachments  is  given  to  you,  that  officers  may  be 
judged  by  that  branch  of  the  legillature,  which  is  lead  de¬ 
pendent,  and  liable  to  the  lead  bias  from  popular  prejudices. 
You  are  the  branch  cf  the  legiflature,  to  which  more  pecu¬ 
liarly  the  protection  of  the  conflitution,  and  of  the  other 
branches  of  government,  from  popular  paffions,  is  committed, 
lixert  then  your  authority  for  their  protection,  oi  ye  your- 
fclves  may  one  day  be  voted  ufelefs.  Beware  ol  confidering 
the  prevailing  clamour  of  the  day,  as  the  deady,  folid,  per¬ 
manent  voice  of  the  people  ;  or  the  prel'ent  domineering  de- 
imgogue,  as  the  people’s  deady  permanent  friend  or  favourite. 
Where  is  the  example,  in  the  hidory  oi  antient  or  modern 


T 


[  142  j 


times,  of  anyone  party  long  retaining  power  ?  The  life  of 
man  is  fhort  ;  but,  in  that  fhort  period,  what  viciffitudes  do 
we  experience  !  The  party,  which,  one  year,  is  triumphant, 
may  be  defeated  and  proftrate  the  next;  and  the  perfecuted 
may  turn  on  the  perfecutor,  and  avenge  the  injuries  of  the 
proud  day  cf  profperity.  Set  not  an  example  of  converting 
your  government  to  a  drifting  fcene  of  giddy  revolution,  where 
every  officer  is  but  the  pageant  of  a  day,  juft  (hewing  himfelf 
and  vanifhing.  Never  let  an  honeft  officer  be  trampled  down 
in  the  triumph  of  a  party  ;  nor  violate  the  lacred  principle 
of  the  independence  of  your  judges,  to  gratify  party  vengeance. 
Compared  to  eternity,  the  duration  of  dates  themfelves  is  but 
as  the  funfhine  of  an  April  morn  ;  and  the  triumph  of  party 
is  but  the  paffing  hurricane,  marked  only  by  its  rapidity  and 
defolation.  Above  all,  degrade  not  your  own  powers,  or  you 
will  deftroy  them.  Proftitute  not  the  power  of  impeachment  to 
trivial  occafions,  or  you  will  render  it  contemptible.  Referve 
it,  as  it  ought  to  be  referved,  for  kigb  crimes  and  misdemean¬ 
ors.  “  If  they  do  thefe  things  in  a  green  tree,  what  fhall 
be  done  in  the  dry  ?”  If  you  proceed  by  impeachment  againft 
innocent  aClions  or  mi  (lakes  ;  what  fe  verity  have  you  beyond 
it,  for  corruption,  for  difhonefty,  for  giofs  abufe  of  power  ? 
If  impeachment  be  ufed  in  cafes  like  mine,  an  impeachment 
by  the-Houfe  of  R.eprefentatives  will  be  confidered  as  an  hymn 
of  praife,'  and  a  conviction  by  the  Senate  as  a  garland  of 
triumph  :  Cenfure  will  be  glory,  and  approbation  dilgrace. 

You  ad  now  in  an  extenftve  theatre,  and  have  the  whole 
world  as  fpedlators  and  judges  of  your  conduct.  The  faith- 
iul  pen  of  hiftory  will  delcribe  it  t<b  pofterity.  What  is  done 
to  me  is  done  to  the  judiciary  of  Pennfylvania  ;  and  tlrs 
tranfadtion  will  derive  importance  from  my  ftation.  It  re¬ 
mains  for  you  to  confider  whether  this  tranfaclion  will  give 
dignity  and  character  to  you.  View  it  not  through  the  dif- 
fembling  medium  of  party  fpirit  and  prefent  pafficn.  Look 
at  it,  as  it  will  be  looked  at  an  hundred  years  hence  ;  when 
the  paffions  and  prejudices  of  the  day,  will  be  difpelled  like 
a  morning  mill.  Ii  popularity  were  to  be  regarded  in  your 
decifton,  even  there  I  have  nothing  to  fear  :  for  true  eft  una¬ 
ble  popularity  1  have.  Though  in  a  narrow  fphere,  I  can 
fay  with  Lord  Mansfield,  “  I  wiili  popularity  :  but  it  is  the 
popularity  which  follows,  not  that  which  is  run  after.  It  is 
that  popularity  which,  fooner  or  later,  never  fails  to  do  jus¬ 
tice  to  the  purfuit  ot  noble  ends  by  noble  means.  I  defy  any 
man  to  point  out  a  bugle  action  of  nsy  life,  where  the  popu¬ 
larity  of  the  times  had  the  fmalleft  influence  on  my  deter¬ 
minations.  I  thank  God  I  have  a  more  permanent  and  ftea- 
dy  rule  for  my  conduct,  the  didates  of  my  own  bread.  Thofe 


I 


143  ] 


have  foregone  that  pleating  advifer,  and  given  up  their 
mind  to  be  the  (lave  of  every  popular  impulfe,  I  fincerely 
uity,  I  pity  them  dill  more,  if  their  vanity  leads  them  to 
miftake  the  (houts  of  a  mob,  for  the  trumpet  of  fame.  Ex¬ 
perience  might  inform  them,  that  many  who  have  been  falut- 
ed  with  the  huzzas  of  a  crowd  one  day,  have  received  their 
execrations  the  next  ;  and  many,  who,  oy  the  popularity  of 
the  times,  have  been  held  up  as  fpotlefs  patriots,  have  ne- 
verthelefs  appeared  upon  the  hiftorian’s  page,  when  truth  has 
triumphed  over  delulion,  as  the  affaflins  of  liberty.”* 

Your  decifion  in  this  cafe  will  be  recorded  in  hiftory  ;  and, 
for  your  decifion,  you  are  anfwerable,  not  only  to  thole  who 
now  live,  but  to  pofterity.  At  that  tribunal  I  have  nothing 
to  fear.  The  fermentation  produced  by  personal  malice  will 
foon  evaporate,  and  my  character  will  appear  in  its  true 
light.  Socrates,  Phocion,  Cicero,  Sidney  aid  Strafford,  fell 
by  the  public  executioner.  Aridities,  Scipic  and  Clarendon, 
were  banilhed.  Impartial  hiftory  has  don<  juftice  to  their 
memory,  and  to  the  memory  of  their  acufers.  ^fho  'K 
there  in  this  Senate,  that  would  not  prefer. he  place  ot  thole 
perfecuted  men,  to  that  of  their  perfecutos  ! 

But  you  are  befides  anfwerable  to  God.  *-rou  are  not,  as  the 
Houfe  of  Reprefentatives  may  have  nought  themle  ves, 
jnfting  in  a  loofe  diferetion,  without  any  law  but  your  own 
will.  You  a6t  under  the  immediate  Inchon  ot  an  oa  , 
and,  before  you  can  fay  that  I  am  guilti  you  muft  have  evi¬ 
dence  to  latisfy  you,  that  I  have  commuted  an  unlawful  ac  , 
•with  an  evil  intention ,  that  I  have  bed  guilty  oi  corruption, 
partiality,  or  wilful  injuftice  ;  and  mu  muft  pronounce  my 
doom,  on  the  fame  principles,  on  whim  you  would  be  wi  i 
to  receive  your  own,  from  your  gre/t  God  and  juege  a  e 

last  day . 

Mr.  M‘KE/N. 


MR.  SPEAKER ,  AND  GENfLElEN  OF  7’ HE  SENATE, 

The  polite  and  patient  attenion,  which  this  honorable 
court  has  been  pleafed  to  pay,  a  well  to  the  counlel  who  ia* 
preceeded  me  on  the  part  of  th-  profecution,  as  to  the  gen¬ 
tleman  who  is  the  objetf  of  a'cufation,  induces  me 
that  the  fame  indulgence  will  be  extended  to  me.  Muc  1 
time  has  been  confumed  in  the  inveftigation  of  this  cauie  : 
although  confumed,  it  has  rot  been  wafted,  for  that  time 
cannot  be  confidered  as  mifaiplied  which  has  been  expen  c 
in  a  difeuffion  if  fo  much  inportance,  as  it  affects  the  rights 
and  charaaer  of  the  defendant  as  a  judge  ;  the  officers  ot  the 

*  Lord  Mansfield ,  in  ihe  King's  bench ,  and  in  the  House 
of  Lords . 


[  l++  1 


government  in  genera! ;  the  rights  and  powers  of  the  befit 
ot  reprefentatives  ;  the  rights,  jurifdiaion  and  power  of  he 
fenate,  and  the  rights  and  lafety  of  the  people/ 

As  much  extraneous  matter  has  been  introduced  bv  Mr 
bees  hid  ZurtnCfr]  ^  n°tiCe  ”“7  th inSs  tha'  have 

been  laid,  a.though  not  relevant  to  the  caufe  under  confide 
ration,  and  many  affections  have  been  made  without  the  e^ 
evidence  to  fuppor.  them  ;  indeed,  it  feems  to  have  been  in 
tended,  ana  expend,  by  the  defendant,  that  we  (h„„!d  take' 

tsr :  oV r.s  dn  ir/  3srdence’  >»*  ^  met 

flfctement^of  teZstttt.  *“*  ^  * 

th,?tUhehfrd,aeriti’infft„ed  ft"  ^  ^ 

trot  in  "evidence,^ 1” u”JT T"  t  h  is 

reprefentatives  or  the  manaa'e-slno'f  "th'6^  that  the  houfe  °f 
be#m  aftuated  by  nUre  nr  ^  thlS  jmPeachmen:  have 

peared  that  the  v?LCe  °r  '™ProP'r  »oiives.  Has  it  np- 

influenced  b/lTict!  °"  ^  part  °f  the  P^cution  -ere 

oron^homihen is\h '  No,  fir;  where 
roan  has  exempted  fr^  his  7^  '  1  he  ,earned  g^ntle- 

and  the  caunfrl  for  ti  ren^ure  the.™embers  of  this  fenate 
of  this  reproach  *  SirWPr°  ^cutI^n-  Who  then  is  the  objeft 

the  defendant  ori.inld11  Z*  ^  ^  .the  charS- 

yondthe  SofquehannaA  WhaV  ^dge  refident  be* 

this  declaration  ?  F0.\  /.  u  15  there  to  w^rant  * 

dence  of  the  fait  on  whn  l  °  6  a  '  tbere  ,s  no  evi- 
was  it  made,  and  what  !i  C0U  d.  red  tbe  action,  why 
View  to  prejudice  the  mirT  7  V10tlve  *  ^as  n»t  with  a 
and  by  inducing  then1 uul  th*  m*mbcn  of  this  tribuna), 
inftituted  to  gratify  perfot^  7'^’  ^7  Profecirlon  -as 

to  public  good  ;  that  ^lie  XieST0;’/' Viot^  "0t  'V'th  3  T'-eW 
fluenced,  and  therefore  nojo  Credited  ?  UP  ’  ,n’ 

It  has  been  faid  hie 

bility  of  the  witness.  DuLTVi  "l  !°  i,rnpeadl  the  credI- 
made  the  obfervation  to  weak,,  ihe^^m3"'  3  7*7  that  he 
the  notes,  and  the  recolleSion  „  T  te(,,nl"ny  •  P  >efer  to 
nate,  of  the  obfervations  made  h?  t  m.™be,rs  of  the  fe- 
queflionsput  by  him,  to  the  witArr  d^^ndant  ;  to  the 
fecution,  and  to  *he  witiwf  '  °n  tbe  PJrt  the  Pr°- 
that  it  l,iAln;' I'"'  ’  S  Pr0CUCcd  in  his  bclla,f.  to  [hew 

be  faid  that  a  Earned  "udge’S  tnd  "ttt  Wh'" 
cution  from  motives  of  peffonal  eilb^ th'S  pr°re' 
infinuare  that  rormnr  *  *  ,blty»  did  lie  not  mean  to 

influence  the  wi‘neff«  7  !T7°r7  "eans  Iiad  been  uf«l  £o 
the  wuneffes,  and  that  the  italics  of  one  individual 


[  145  ] 


had  produced  mifreprefentation  and  perjury  in  others  ?  What 
has  been  the  conduft.  of  tne  witnefiVs  examined  before  the 
fenate  ?  HaAte  they  fhewn  any  difpodtion  to  conceal  the 
truth,  or  to  colour  any  iranfaftion  ?  Has  their  conduct  been 
marked  by  pa  Hi  on  or  refentment?  Did  not  Mr,  Lucas  (who 
had  been  ill  treated  by  the  defendant  in  open  court  in  Alleg¬ 
heny)  when  reprefenting  the  behavior  of  Mr.  Addifon,  on 
the  morning  of  the  22d  June  1801  (and  an  opportunity  then 
offered,  if  he  had  been  difpofed,  to  mif.-eprefent)  date  Mr, 
Addifon’s  language,  as  it  was,  mild  and  perfuafive  ?  What 
has  Mr.  Lucas  dated  in  his  teitimony,  that  has  not  been  cor¬ 
roborated  by  the  tedimony  of  the  other  witnefles,  even  the 
witnefs  for  the  defenuar.t  ?  During  the  examination  of  Mr. 
Lucas,  the  language,  manner  and  voice,  of  the  defendant, 
fufticiently  manifeded  that  he  was  not  tree  from  malice  and 
refentment.  It  has  been  faid  of  this  witnefs,  that  his  con¬ 
duct  was  cenfured  in  his  own  county  ,  that  he  was  vain  and 
conceited  ;  and  that  his  views  were,  to  dedroy  all  harmony 
in  the  court,  and  to  promote  diforder  and  difcord.  What  is 
the  evidence  in  fupport  of  this  allegation  ?  The  people  of 
Allegheny  mud  have  known  his  conduct  on  the  bench,  his 
public  and  private  character.  What  opinion  do  they  enter¬ 
tain  of  his  public  condudl  and  private  character  ?  Have  thev 
cenfured  his  conduct  ?  At  the  lad  eleftion  he  was  chofen  'a 
member  of  congrefs  for  the  didrift  in  which  he  refides.  In 
this  way  have  the  people  of  this  didrift:  expreffed  their  opi¬ 
nion,  and  have  furnifhed  a  complete  and  fatisfactory  refuta¬ 
tion  of  tne  defendant’s  affertion.  Was  ihere  any  thing  in 
the  conduct  of  the  other  witness  to  weaken  their  credibility  ? 
Have  they  been  corrupted,  or  were  they  actuated  by  padion: 
or  refentment  ?  Has  it  been  proved  that  malice  or  ill-will  to¬ 
wards  the  defendant  influenced  their  actions  ?  Has  one  of 
them  dated  a  material  fact  which  another  has  contradicted, 
or  a  material  circumdance  which  has  not  been  corroborated 
by  the  witnefs  for  the  defendant,  if  prefen t  at  the  tranfac- 
tion  ?  Mr.  M‘DoweIl’s  tedimony  alone  proves  the  charges 
laid  in  ihe  articles  ot  impeachment.  I  his  cenfure  cad  upon 
the  witnelTes  is  of  a  piece  with  many  other  parts  of  the  de¬ 
fence  which  I  fhall  have  occalion  to  notice.  To  excufe  hi  v_ 
felf,  the  defendant  cnminates  another,  not  profecutor  or  wit- 
neL,  I  mean  jud ye  Brackenridge.  Is  he  confcious  that  his 
conduct,  towards  that  gentleman,  has  been  fuch  as* might 
juUy  excite  his  refentment  ?  And  does  lie  fear  that  which  lie 
knows  he  deferred  ?  Conduct  fo  unworthy  the  gentleman  is 
not  imputable  to  that  judge.  When  the  motion  for  an  in¬ 
formation  was  before  the  lupreme  court,  judge  Brackenriu^e 
did  not  take  a  part  in  the  decifion  ;  yet  there  was  nothing  to 


[  146  ] 


prevent  his  exnreffmg  his  fentiments  upon  the  conduct  of 
the  defendant,  but  the  delicacy  of  his  own  feelings.  Let, 
then,  (and  enough  has  been  faid  to  (hew  the  propriety)  all 
theie  unwarranted  affertions  of  the  defendant  be  clifi e- 
garded. 

Vv  e  are  told  by  the  learned  gentleman  that  it  was  a  mofl 
arduous  tafk  to  wade  through  the  rude  and  undigeftcd  mafs  of 
obloquy  delivered  by  my  learned  friend.  Whether  the  argu¬ 
ments  he  urged  with  fo  much  energy,  wTere  a  rude,  undigested 
mafs,  1  (hall  chearfully  fubmit  to  the  decilion  ef  this  honorable 
body.  It  is  eafy  to  cenfure  eloquence  you  cannot  equal,  and  it 
is  fometimes  practifed  to  avoid  an  anfwer  when  ingenuity  can¬ 
not  furnifli  it.  He  is  faid  to  have  heaped  opprobrium  upon 
opprobrium  on  the  defendant.  Is  the  obfervation  well  found¬ 
ed  ?  Did  a  fingle  expreffion,  of  a  perfonal  nature,  or  reflect¬ 
ing  in  any  manner  on  the  private  character  of  the  defendant 
efcape  from  his  lips  ?  What  epithets  were  ufed  that  the  oc- 
caficn  did  not  call  for,  and  were  not  wan  anted  by  the  evi- 
de  nee,  that  were  not  applied  to  the  offence,  and  not  perfonal- 
ly  to  the  offender  l  It  is  faid,  the  fame  thing  has  been  fre¬ 
quently  repeated.  If  my  colleague  has  repeated  the  fame 
obfervation,  or  adverted  a  fecond  time  to  the  fame  cafe  or 
principle,  he  did  no  more  than  what  is  ufual,  and  often  indif- 
penfibly  neceffary,  in  public  fpeaking.  If  it  be  wrong,  the 
learned  defendant  is  not  exempt  from  the  fame  cenfure  ;  he 
has  practifed  what  he  has  pronounced  to  be  improper.  He 
has  told  us  repeatedly,  how  virtuous  and  learned  he  is  ;  how 
induIMous,  how  indefatigable  he  has  been  to  acquire  the 
knowledge  requifite  to  fill  his  dignified  ftation  ;  that  the  po¬ 
pularity  of  the  times  had  r.o  influence  on  his  determination  ; 
that  he  had  the  heft  popularity,  the  piaife  of  the  wife  and 
good,  thereby  inlinuati&g  that  thole  who  do  not  approve  his 
conduct  are  neither  wife  or  good.  It  is  not  by  an  appeal  to  «- 
your  paffions,  nor  by  bold  affertions,  or  folemn  proteflations, 
that  I  fhall  endeavor  to  influence  your  judgments.  My  at¬ 
tention  fhali  be  directed  to  the  evidence,  the  confhtution  and 
the  laws.  On  thefe  I  {hall  rely  ;  and  if  thus  founded,  I  can¬ 
not  fubflantiate  the  guilt  of  the  defendant,  no  other  means 
will  he  ufed,  and  I  hope  the  defendant  will  be  acquitted. 

^  on  have  been  told,  and  told  truly,  that  this  trial  has 
been  mentioned  in  newfpapers  in  a  way  calculated  to  excite 
prejudice  and  influence  the  decilion  of  this  court  again!1,  the 
defendant.  Thefe  publications  are  highly  cenfurable.  They 
ought  not,  and  I  am  lure  will  not,  have  any  effect  upon  the 
minds  of  the  members  of  the  fenate.  While  I  admit  that 
the  publications  referred  to  were  very  improper,  I  muft  ob¬ 
serve  that  it  is  more  cenfurable,  by  a  direct  communication 


[  147  ] 


with  the  members  of  the  fenate,  to  endeavor  to  influence 
their  decifion.  This  attempt,  I  ha ve  veafon  to  believe,  has 
been  made  ;  but,  will  not,  I  am  confident,  produce  the  ef- 
intended.  ihis  court  will,  I  have  no  doubt,  in  forming1 
their  decifion,  be  governed  by  their  oaths,  the  com  dilution, 
the  evidence  and  the  law. 

h  ou  have  been  told  that  your  decifion  in  this  cafe  will  be 
recorded  in  hiftory,  and  for  your  decilion  you  are  anfwerable 
not  only  to  thole  who  now  hve,  but  to  polierity  ;  and  at  that 
tribunal  the  defendant  has  nothing  to  fear. 

It  is  true,  your  decifion  will  be  recorded  :  it  is  alfo  true, 
that  the  evidence,  and  the  law,  produced  to  fupport  the 
charges  will  be  recorded;  and  if  it  fhould  appear  that  the 
charges  were  well  founded,  and  the  defendant  acquitted  in 
violation  of  your  oaths,  you  will  be  anfwerable  to  Gotland 
your  country  for  your  decifion.  An  improper  conviftion  or 
acquittal  will  be  equally  injurious  to  your  country  and  to 
your  reputations. 

1  he  learned  defendant  has  told  you  that  it  is  towards 
twelve  years  fince  he  was  appointed  prefident,  an  appointment 
not  foheited  by  him.  It  may  belie  did  not  folicit  the  appoint** 
ment  ;  but  others  may  have  applied  for  him.  He  tells  you 
he  accepted  it  with  cheerful  nels,  becaufe  he  thought  it  ac¬ 
corded  with  the  wifhes  of  the  bar,  and  of  the  people,  and 
that  he  could  be  ufeful.  This  may  be  all  tine  ;  but  as  he  laid 
to  judge  Lucas,  ’tis  not  to  the  point  in  iffue.  Although  he 
n;ay  have  been  ufeful  on  feme  occafons,  he  may  have  done 
much  that  was  wrong.  He  may  have  brow-beaten  witneffes, 
borne  down  counfel  at  the  bar,  intimidated  juries,  arbitrarily 
controlled  his  alTociates,  opprcfTed  and  injured  the  fuitor,  de¬ 
graded  the  court,  fubverted  the  laws  of  his  country,  and  vi¬ 
olated  the  rights  of  the  people.  I  do  not  fay  all  thefe  in- 
ftances  of  improper  conduit  have  taken  place  in  his  judicial 
adminiftration  ;  but  all  may  ;  and  that  fome  have,  is  in  evi¬ 
dence  before  you. 

It  is  not  the  exercifc  of  an  upright  judgment  in  cafes  of 
tncum  and  tuum  that  alone  conftitutes  a  good  ju^lge. 

It  is  faicl  of  the  judges  in  England,  that  in  all  quefiions 
of  property  between  individuals,  no  judges  can  be  more  up¬ 
right,  no  decilions  more  impartial.  But  in  cafes  where  the 
crown  or  party  politics  are  concerned,  it  rarely  happens  that 
the  influence  of  the"" crown  does  not  regulate  the  decifion. 
V/hat  has  been  the  lituation,  for  many  years  pad,  of  every 
defendant  who  was  charged  before  their  courts  with  the  pub¬ 
lication  of  a  libel  ?  The  palhons  of  the  minilters  Hem  to  have 


[  HS  ] 


governed  their  courts  of  law.  Mr.  Holt,  a  printer,  was  im- 
prifoned  two  years  for  re-publilhing  in  1793  the  duke  of 
Richmond's  letter  to  Col.  Sherman,  which  had  been  printed 
in  1783  by  Mr.  Pitt.  An  a£t  which  was  proper  and  patri¬ 
otic,  when  done  by  Mr.  Pitt  in  1783,  became  criminal  in 
Holt,  under  Mr.  Pitt’s  adminiitration,  in  179  3.  Thus  we 
fee  learned,  honed  and  impartial  judges  in  England  in  cafes 
between  piivare  citizens,  where  the  minifter  interferes,  may 
be  influenced,  for  fu rely  that  could  not  be  criminal  in  Holt 
in  1793  w  hich  was  praife  worthy  in  Mr.  Pitt  in  1783.  The 
glare  of  mtereft  plays  upon  their  paffions  and  warps  their 
judgments.  Although  independent  in  ;heir  flat  ions,  they 
look  to  promotion.  They  might  fay  with  the  defendant, 
that  what  th*y  did  was  right,  and  under  the  fame  imprefiions 
they  would  do  the  fame  thing  again  ;  but,  if  millaken,  ic 
■was  an  error  in  judgment  merely,  tor  which  they  were  not 
refponGble.  Perhaps  it  may  be  afked,  how  this  applies  to 
the  defendant  ?  Could  the  defendant  have  expe&ed  promo¬ 
tion  by  the  admiftiftration  of  1801  ?  I  anfwer.no.  But  what 
was  the  profpecl  in  December  1800,  and  before  the  event  of 
the  election  for  preiident  of  the  United  States  was  known  ; 
Then  the  h  nics  of  promotion  may  have  influenced  his  con¬ 
duit,  and  it  may  have  been  well  underflood,  if  not  faid,  if  you 
exert  you  riel  f  to  fupport  the  prefent  adminiftration,  and  we 
are  fuccefsful,  you  ih all  rife.  Allured  by  this  profpeit,  he 
was  willing  to  believe  that  he  was  honeflly  and  uprightly 
difeharging  his  duty,  when  he  delivered  his  party  charges, 
and  prevented  any  obfervations  by  his  aflociate  in  reply. 


The  gentleman  has  faid  in  the  language  of  complaint  that 
he  has  been  compared  to  judge  Jefferies.  Judge  Jefferies 
was  mentioned  by  Mr.  Dallas  as  an  inflance  ot  a  good  judge 
in  all  queilions  of  property  between  private  individuals  ;  but 
tyrannical  and  overbearing  where  the  crown  was  a  party, 
and  cruel  in  Prate  profecutions.  Upon  queilions  cf  propeity 
merely,  Jefferies  was  an  able  judge.  It  has  not  been  faid, 
we  not  mean  to  infinuate  by  the  companion,  that  the  defend¬ 
ant  by  unjuft  convictions  or  cruel  fentences  has  deprived  the 
child  of  his  parent,  the  wife  ot  her  hufband,  or  wrung  the 
tear  cf  diftvefs  from  the  widow,  or  the  orphan’s  eye.  But 
*w£  do  fay,  that  in  fo.ne  cafes  where  party  had  its  influence, 
gs  with  Jefferies,  his  mind  was  warped,  and  his  judgment 
erroneous  and  unjuft; 


The  defendant  has  told  you,  that  if  any  man  had  faid  in 
the  weftern  country,  that  he  was  a  violent  party  man  or  a 
tyrannical  judge,  he  would  not  be  confidered  as  very  wile  or 
very  prudent.  Why  this  threat?  If  the  obfervation  is  ju!5r. 
it  was  wife  and  prudent  and  proper,  and  cur  duty  to  make  it. 


[  H0  1 

true,  why  not  equally  wife  and  prudent  to  frate  the  fa£l  hi 
t he  weftern  country.  Are  not  the  maxims  of  wifdom,  and 
the  rules  of  prudence,  the  fa»e  in  Allegheny  and  Lancafter 
counties  .  1  he  charge  mull  be  equally  true  and  founded  whe¬ 
ther  it  is  maae  in  the  one  or  the  other  county.  And  where 
:orce  or  improper  consequences  are  not  to  be  apprehended 
it  cannot,  oe,  always,  unwife  or  improper  to  fpeak  the  truth! 
.have  wf  Yea fon  to  believe,  that  perfonal  violence  would  have 
been  ufed  lr  the  obfervatiou  had  been  made  in  the  weftern 
country  ?  I  hope  not.  But  be  that  as  it  may,  I  will  ft-  and 
to  the  honor  o,  the  date  it  will  be  evinced,  (in  the  language 
o  toe  defendant)  that  here  the  prefident  of  a  court,  charge 
ed  with  an  offence,  will  have  bis  conduit  examined  with  as 
much  zeal,  as  any  other  offender  againft  the  laws  of  the 
commonwealth.  The  fear  of  perfonal  violence  will  not  deter 
counfel,  who  aft  from  a  fenfe  of  duty.  Sir,  I  hope  I  may 
teie  e  permitted  to  fay,  for  my  profeffional  brethren,  (as  the 

1?‘S  fretIuently  eulogized  his  judicial  cha- 
laCl.r)  that  the  protection  of  property,  of  reputation,  the 

fecunty  of  perfonal  rights  and  public  liberty,  have  been  as- 

ably  advocated,  and  fupported  with  as  much  zeal,  by  the  bar 
as  by  tne  bench.  7 

From  the  remark  of  the  defendant,  it  would  not  be  confidered 
(in  the  weftern  country)  as  wife  or  prudent  even  to  queftion  the 
judicial  opinions  of  the  prefident.  Yet,  if  perfonal  violence 
was  not  to  be  apprehended,  I  know  but  one  other  ill  confe- 
quence  that  would  flow  from  the  exercile  of  that  right:  that 
it  is  true,  might  be  the  ruin  of  the  individual.  The  advo! 
cate  who  fhould  thus  incur  the  refentment  of  the  judge,  might, 
lie  treated  with  contempt,  his  legal  talents  doubted  or  denied 
his  clients  witneffes  brow  beaten,  his  clients  infulted  and* 
abuled,  juftice  ftifled,  and  his  caufe  of  courfe  loft. 

The  natural  confequence  would  follow,  that  counfel  would 
be ’  employed  whom  the  judge  would  not  treat  with  de- 

ToJSSTf  Pr°lMbl7.  not  hcar  ac  a»-  He  would  then 
rh  V  bcTconie  the  tune-lerving  tool  of  the  judge,  or 
change  his  profeifion,  or  leave  his  country.  J 

T  this  all  fancy  ?  Are  there  not  fome  who  hear  me,  and 
who  know,  that  witneffes  have  been  brow  beaten.  Ws  "n- 

t  ”ifaprotelio  at,  COUnfel  1,ave  becl1  oblig'd  to  abandon 
tneu  protejlion  or  leave  that  country. 

The  judictal  character  of  Jefferies  has  been  noticed.  I 
wi  i  mention  another.  It  is  well  known  that  lord  chancellor 

'  H 


[  150  ] 


Bacon  was  impeached  for  bribery  and  corruption.  The 
charges  were  proved  ;  not  only  proved,  but  not  denied  :  yet 
in  his  defence,  it  was  contended,  that  the  bribes  had  not  in¬ 
fluenced  his  decilions  )  that  his  decrees  were  equitable  and 
juft,  and  fo  much  lo,  that  no  decree  made  by  him  was  ever 
reverfed  as  unjuft.  The  defence,  although  true  in  tact,  did 
not  procure  his  acquittal.  He  might  have  laid  with  the  de¬ 
fendant,  that  he  had  not  failed  in  his  duty,  he  was  confcious 
of  no  crime  ;  that  if  he  had  erred,  it  was  a  delufion  he  could 
not  overcome  ;  that  he  had  no  evil  intention ,  and,  therefore, 
he  was  guilty  of  no  offence. 

The  defendant  has  told  you  that  the  fav®rable  opinion  en¬ 
tertained  of  him  by  the  people  of  his  diftridl  has  ripened  into 
confidence.  What  proof  have  we  to  fupport  his  aflertion  ? 
He  has  offered  the  cestificates  of  his  affociate  judges  and 
others.  This  court  has  refuted  to  hear  them  read  in  evi¬ 
dence,  or  to  permit  them  to  be  uled  in  argument.  Yet  he 
has  referred  to  their  contents  to  fupport  his  charader.  What 
would  have  been  the  condud  of  the  defendant,  if  a  gentle¬ 
man  of  the  bar  had  aded  thus,  in  a  caufe  trying  before  him 

as  prefident  of  the  common  pleas  ?  I*  coun^e^  aL“ 
tempted  to  ufe  in  argument,  papers  which  the  court  had  re¬ 
jected  as  evidence,  the  learned  prefident  would  have  repri*. 
manded  him  ,  if  the  attempt  was  repeated,  he  would  have 
ordered  him  to  take  his  feat,  and  at  leart  have  threatened  to 
commit  him.  But  why  are  thefc  certificates  produced  ?  11  his 
friends  are  fo  numerous  and  fo  fincere,  why  are  they  not 
here  ?  A  judge  fo  high,  as  the  defendant  represents  himlelt 
to  be,  in  the  eftimation  of  his  affociate  judges  and  in  the 
opinions  of  the  wife  and  goed  men  of  his  diftrift,  could  cer¬ 
tainly  have  prevailed  upon  fome,  at  leaft,  to  appear  before 
this  court,  to  fupport  by  their  teftimony  his  official  condud 

and  character. 


Popularity,  he  has  hid,  he  views  as  a  fecondary  objeft, 
id  when  acquired,  as  it  too  often  is,  by  unworthy  means, 
contemptible  obieft.  The  defendant  has  not  praftiied  upon 
is  own  precepts.  He  has  taken  unworthy  means  to  acquits 
opularity  by  traducing  the  characters  of  others,  even  in  is 
targe  from  the  bench,  and  by  preventing  his  affociate  jud 
■om  endeavoring  to  counteract  the  effete  of  his  politico 
enunciations. 


C  I5I  3 

IN  SENATE. 


WEDNESDAY,  JANUARY  2 6. 

The  fena^e  refumed  the  confederation  of  the  articles  of  accu- 
fation  and  impeachment  againft  Alexander  Addifon. 

Mr.  Rodman  called  for  the  reading  of  the  articles  of  accufa- 
tlon  and  impeachment,  exhibited  by  the  houie  of  reprefenta- 
tives,  againft  Alexander  Addifon,  and  the  fame  were  read. 

It  was  moved  by  Mr.  Carton,  feconded  by  Mr.  Jones,  that 
a  queftion  be  taken  on  the  articles  feparately. 

The  queftion  on  the  motion  being  put,  it  was  determined  in 
the  negative. 

O 

The  fenate  decided  that  the  queftion  fhould  be  taken  on  the 
articles  j'ointly. 

The  fpeaker  then  ftated  the  queftion  as  follows  : 

Is  Alexander  Addifon  guilty,  or  not  guilty  of  the  charg¬ 
es  contained  in  the  articles  of  accufation  and  impeachment,  ex¬ 
hibited  againft  him  by  the  houfe  of  reprefentatives,  juft  read/* 

and 

Upon  the  members  being  called  to  anfwer  thereto,  they  de¬ 
clared  as  follows  : 

Matthias  Barton,  faid 
James  Ewing, 

William  Findley, 

James  Gamble, 

James  Harris, 

Jonas  Hartzell, 

John  Heifter, 

Thomas  Johnfton, 

John  Jones, 

John  Kean, 

Prefley  Carr  Lane, 

Chriftian  Lower, 

Aaron  Lyle, 

William  M‘Arthur, 

Thomas  Mewhorter, 

Thomas  Morton, 

John  Pearfon, 

John  Porter, 

William  Reed, 

John  Richards, 


not  guilty, 
not  guilty, 
guilty, 
guilty, 
guilty, 
guilty, 
guilty, 
not  guilty, 
not  guilty.  , 
guilty, 
guilty.  . 
guilty, 
guilty, 
guilty, 
guilty, 
guilty, 
guilty, 
guifty. 
guilty, 
uilty. 


[  <52  ] 


William  Rodman,  faid 

guilty. 

John  Steele, 

guilty. 

Robert  Whitehill, 

guilty. 

Samuel  Maclay,  Speaker . 

guilty. 

Whereupon, 

The  fpeaker  declared  that  twenty  members  had  faid  guilty, 
and  four  members  had  laid  not  guilty,  and 

That  Alexander  Addifon  is  accordingly  duly  convicted  of 
the  charges  contained  in  the  articles  of  accufation  and  impeach¬ 
ment  exhibited  againil  him  by  the  houfe  of  reprefentatives. 

A  letter  from  Alexander  Addifon  was  read,  accompanied  b\r 
the  certificates  of  his  character  and  conduct  as  referred  to  in 
the  letter. 

The  letter  was  read  as  follows,  to  wit  :  and  laid  upon  the  ta¬ 
ble. 

Lane  after,  January  26,  1S03. 


SIR, 

1  beg  leave  to  fubmit  to  the  fenate,  whether  any  judgment 
can  be  given  on  the  firft  article  of  the  impeachment  againil  me, 
feeing  it  alledges  no  unlawful  act. 

During  the  trial  I  did  not  think  it  fair  to  argue  from  the  de¬ 
gree  of  pumfliment.  Now  when  the  queftion  of  guilt  is  afeer- 
tained,  it  is  fair  to  date  the  opinion  which  I  have  ever  enter¬ 
tained,  and  which  to  me  appears  felf  evident. 

Removal  and  disqualification  is  the  extremity  of  punilhmen* 
which  the  fenate  can  in  find  on  any  impeachment.  The  punilh" 
ment  may  be  as  much  lets  as  they  judge  proper.  It  maybe  re' 
moval  and  disqualification  to  hold  only  certain  offices.  It  may 
be  removal  only.  It  may  be  fufpenfion  for  a  moment.  It  may 
be  only  reprimand.  The  fenate  will  no  doubt  proportion  the 
punilhment  to  their  ideas  of  guilt,  for  if  they  proceed  to  the 
extremity  in  cafes  that  may  be  mere  miftake,  what  means  would 
they  have  to  mark  their  deteftation  of  grofs  corruption,  and  the 
word  kind  of  miidemeanor  in  office. 

If  I  be  removed  from  this  office,  I  have  no  defire  for  ano" 
ther,  for  I  know  not  how  I  could  bepave  better  in  any  other, 
than  I  think  I  have  done  in  this.  But  if  to  removal  be  added 
disqualification,  I  know  not  but  fuch  con  draft  ion  may  be  put 
on  it,  though  I  think  unreafonably,  as  it  would  put  it  out  of 
my  power  to  purlue  a  profeffion  neceiTary  for  competent  provi¬ 
sion  for  my  family,  and  amount  to  an  expulfion  of  me  from  the 


t 


[  '53  3 

ftate.  If  difquaiification  fhould  be  thought  of,  let  it  thqn  only 
be  a  qualification  for  any  office  to  which  an  annual  falary  is  an¬ 
nexed,  or  any  other  limited  difquaiification  which  the  fenate 
may  approve. 

I  have  only  further  to  fuggefl  whether  the  fame  number  of 
members  be  not  neceffary  to  fix  the  punifhment  as  to  afcertain 

the  guilt. 

I  offer  for  the  infpe&ion  of  the  fenate,  certificates  of  my 
character  and  conduct. 

I  am  with  due  refpefl, 

Your  moil  obedient  fervant, 

ALEX.  ADDISON. 

Hon.  Samuel  Maclay ,  esq. 
speaker  of  the  senate. 

Mr.  Barton  called  for  the  reading  of  the  certificates  which 
accompanied  the  letter  from  Alexander  Addifon. 

The  queflion  being  put,  “  (hall  the  certificates  prefented  by 
Alexander  Addifon,  be  read  ?”  was  determined  in  the  nega¬ 
tive. 

Thereupon, 

Ordered,  That  the  faid  certificates  be  returned  to  Alexander 
Addifon,  by  the  clerk. 

Moved  by  Mr.  Rodman,  feconded  by  Mr.  Mewhorter, 

Refolved,  That  the  fentence  to  be  pronounced  on  Alexander 
Addifon,  be  as  follows,  to  wit : 

“  Removal  from  the  office  he  now  holds,  and  difquaiification 
to  hold  any  office  of  honor,  trull  or  profit,  under  this  com¬ 
monwealth.’ ’ 

On  motion  of  Mr.  Pearfon,  feconded  by  Mr*  Kean,  and 

Agreed,  That  the  further  confideration  of  the  preceding  re“ 
folution,  be  poftponed  in  order  to  introduce  a  fubllitute  which 
Mr.  Pearfon  read  in  his  place. 

The  queflion  on  the  motion  being  put,  was  determined  in  the 

affirmative. 

Mr.  Pearfon  prefented  the  fubllitute  to  the  chair,  and  th 
fame  was  read  as  follows,  to  wit : 

Refolved,  That  the  fentence  on  Alexander  Addifon  be  re" 
moval  from  office,  and  difquaiification  to  hold  any  office  in  fu" 


r  154  1 

turc  within  this  commonwealth,  which  is  created  by  a  commit 
lion  from  the  governor,  and 

That  the  fpeaker  of  the  fenate  fliall  pronounce  the  fai'd  fen- 
tence  at  three  o’clock  this  afternoon,  in  the  chamber  of  the 
houle  of  reprefentatives. 

On  motion  of  Mr.  Findley,  feconded  by  Mr.  Mewhorter,  and 

-gued,  Tnat  the  refolution  be  amended,  bv  addino-  next 

after ^  the  word  office,  where  it  Iaft  occurs  the  words  “°in  the 
judiciary.'’ 

On  motion  of  hlr.  Whitehall,  feconded  by  Mr.  Barton, 

Agreed,  That  the  further  conlideratioa  of  the  refolution  be 
poitponed  rcr  the  pieient. 


Or.  Thurfdaythe  houfe  of  reprefentatives  being  in  committee 
ot  the  wnole,  for  that  purpofe,  and  the  members  of  the  fenate 
being  introduced,  the  fpeaker  of  that  body,  pronounced  fen. 
fence  again!,  judge  Addifon,  as  follows  : 

i  i»ut  ALxandei.  Admion,  prehdent  or  the  feverrd  courts  of 
common  pleas,  in  the  fifth  diftridl  of  this  ihate,  fhallbe,  and  he 
hereby  is  removed  from  his  office  of  prelident  aforefaid,  and  al¬ 
io  is  difqualified  to  hold  and  exercife  the  office  of  judge,  in  any 
court  or  law  within  the  commonwealth  of  Pennfylvania.” 


I 


. 


- 


.. 


’ 


J 


1 


I  > 


EXPERIENCE 

•'  t 

.  ”  ‘  \ 

THE 

TEST  OF  GOVERNMENT 

91n  €i0fjteen  €aaapB, 


WRITTEN 

« 

\ 

DURING  THE  YEARS  1805  AND  1806. 

% 

TO  AID  THE  INVESTIGATION  OF  PRINCIPLES,  AND  OPERATION 

OF  THE  EXISTING 

•  % 

CONSTITUTION  AND  LAWS 

% 

% 

OF 

PENNSYLVANIA. 


Experience  is  a  dear  school,  but  fools  will  learn  in  no  other 


....and  scarce  in  that. 


POOR  RICHARD. 


PHILADELPHIA: 

PRINTED  BY  WILLIAM  DUANE, 


1807 


«  # 


I 


i 


ADVERTISEMENT. 


•  '  V 

THE  remarks  which  compose  the  following  papers,  were  written 
without  regard  to  system  or  style ;  and,  as  the  objects  presented 
themselves,  in  a  situation  favorable  for  dispassionate  observation,  and 
out  of  the  vortex  of  party  passions.  They  are  not  personal,  there¬ 
fore  cannot  give  offence.  They  develope  the  actual  operations  of 
government*  generally,  but  more  immediately  point  out  the  enor¬ 
mous  abuses  which  flow  from  the  exorbitant  power  vested  in  the 
executive.  There  are  repetitions,  but  they  will  be  found  useful,  as 
they  are  intended  to  place  the  same  object  in  different  points  of 
view,  and  thereby  render  the  facts  more  clear  ;  and,  what  is  of  im¬ 
portance  in  discussion,  familiar  to  the  reader.  They  inculcate  the 
principle,  that  it  is  necessary  for  the  people,  to  keep  alive  the 
spirit  of  investigation — to  have  frequent  recurrence  to  first  princi¬ 
ples  ;  and  thereby  guard  against  that  tendency  so  natural  to  the 
mind  of  man,  of  accumulating  and  perpetuating  power;  which 
commences  by  degrees,  grows  bulky  and  formidable  in  its  progress, 
and  if  not  timeously  prevented  in  its  effects,  must  end  in  subverting 
every  free  government,  and  terminate  in  a  hideous  and  tyrannic 
aristocracy. 


0  • 


A 
.  r 


i 


EXPERIENCE 


THE 


TEST  OF  GOVERNMENT 


AND 


LAWS. 


ESSAY  I. 

°‘V  TI,E  fJtruRB  OF  GOVERNMENT  AND  LEGAL  POWER. 

DESPO'HC  government  has  many  adherents,  who  never 
reason  until  after  they  act.  They  decide  first  and  enquire  after- 
wards.  There  are  none  however,  who  refuse  their  assent  to  the 
principle  that— governments  are  instituted  for  the  benefit  of  man' 
and  although  then-burthen  be  a  comparative  evil,  it  is  borne  io 
prevent  greater,  which  must  exist  without  them.  Were  all  men 
moderately  well  educated,  informed,  wise,  and  virtuous,  each  would 
have  correct  views  and  useful  pursuits:  each  would  undersand  bet- 
ter  than  is  usual,  what  best  promotes  happiness ;  and  having  his  own 
felicity  m  prospect,  should  so  wisely  combine  with  the  happiness 
of  others,  that  government  would  be  divested  of  a  great  part  of 
that  occupation  required,  as  it  is  now  conducted.  1 

But  such  is  the  situation  of  man,  that  the  wants  created  by  socie¬ 
ty  itself,  and  kept  up  by  example,  together  with  the  gratification 
of  unruly  passions,  raise  anxieties  which  too  frequently  impel  to 
improper  pursuits  :  hence,  injuries,  injustice,  and  vice,  render  re- 
strarnt  necessary,  lest  the  corrupt  and  powerful  should  unjustly  con 
vert  the  produce  of  the  industry  of  others  to  their  exclus  ve  benefit 
To  the  wise  and  virtuous,  these  would  be  greater  evils  than  the  bm- 
then  of  government;  men  therefore  associate  for  mutual  securftv 
and  good,  and  for  these  ends  only,  submit  to  being  governed 
lhey  surrender  into  the  political  stock  of  the  community  a  few 
powers  to  delegates,  who  make  what  are  called  laws,  and  each 
contributes  a  part  of  the  produce  of  his  industry,  that  the  re- 
mamder  °f  each  may  be  secured,  and  that,  in  its  enjoyment, placed 
out  of  the  reach  of  interruption  or  violence.  A‘  system  of  eo 
vernment  must  be  the  best,  which  at  the  least  expence  mort 
effectually  secures  these  ends  to  the  community  so  associated 

but^mav  hUtfi°fn?  f  S0Clety’  are  generally  denominated  haws  ; 
but  it  may  be  fit  before  we  proceed  farther,  to  explain  the  term 


(  6  ) 


more  clearly  ;  for  if  there  were  not  different  species  of  institution,  the 
ordinary  meaning  of  the  term,  which  signifies  something  written  or 
published  as  a  rule,  by  which  the  members  of  society  are  required 
to  act,  and  forbid  to  transgress,  would  be  competent  for  common 
use.  But  as  there  are  varieties,  and  as  they  are  sometimes  con¬ 
founded,  or  mistaken  one  for  the  other ;  the  confusion  produces 
doubt,  and  doubt  always  has  a  tendency  to  injure  that  which  the 
doubt  concerns. 

On  the  formation  of  societies  or  nations,  either  before  the  disco¬ 
very  of  the  art  of  writing,  or  before  the  application  of  letters  to 
legislation— *the  laws  consisted  in  certain  obvious  maxims  or  prin¬ 
ciples  to  which  all  agreed,  because  they  concerned  the  security  of 
each  member,  against  wrong  from  some  other  member ;  or  a  whole 
society  from  injury  meditated  by  some  other  society.  The  intro¬ 
duction  of  letters,  and  their  progress,  produced  more  enlarged 
ideas  and  embraced  a  more  comprehensive  scope.  Laws  came  to 
be  written,  but  cunning  evaded  or  perverted  them  ;  tyranny  violated 
them ;  a  revision  was  necessary ;  and  soon  after  limits  were  fixed 
to  the  power  of  those  who  were  entrusted  to  manage  public 
affairs ;  or  to  execute  the  laws  formed  by  the  will  of  the  society. 
The  experience  of  every  day  pointed  out  some  new  want  of  pro¬ 
visions  for  the  common  protection  ;  some  guard  for  the  weak 
against  the  strong  ;  some  limitation  of  authority,  some  prohibition 
of  abuse.  These  gave  rise  to  declaratory  laws,  or  laws  declaring 
certain  great  rules,  which  were  to  govern  other  inferior  branches 
of  regulation  or  law  ;  from  the  same  sources  arose  great  charters, 
as  they  have  been  called  and  bills  of  rights.  But  the  greatest 
improvement  of  all,  has  been  a  Constitution,  which  is  in  other 
words,  a  written  law ,  which  is  to  remain  inviolate,  and  by  the  spirit 
and  principles  of  which  all  other  laws  are  to  be  regulated,  and 
contrary  to  which  in  any  part,  no  act  of  legislation  can  be  valid  or 
obligatory ;  so  long  as  those  who  made  the  constitution  think  proper 
to  preserve  it  unaltered. 

Hence  a  constitution  appears  to  be  a  law  of  a  superior  nature ;  and 
to  be  held  as  the  basis  of  all  other  laws,  while  it  remains  unaltered. 
This  constitution  or  supreme  law,  is  the  frame  by  which  society  is 
kept  together ;  and  its  concerns  regulated ;  for  it  is  at  once  the  law 
of  all  the  people,  and  the  rule  by  which  the  ordinary  legislature 
and  all  other  branches  of  public  authority  is  guided  and  governed. 

The  laws  of  a  free  state  therefore  consist  of  the  supreme  law,  or 
constitution,  which  defines  the  limits  of  ordinary  legislation ;  the  acts 
of  the  legislati  ve  conformable  to  the  constitution  is  the  ordinary  law. 
That  branch  of  government  which  is  intended  to  be  expressed  by 
the  judiciary,  or  juridical  department,  is  still  subordinate  to  the 
legislative  authority,  in  as  much  as  it  is  bound  by  the  acts  of  the 
legislative  body  ;  in  this  department  exists  a  great  monster  in  what 
is  called  common  law ;  that  is,  a  pretended  law  which  was  neither 
proposed,  digested  nor  written,  nor  deliberated  upon,  either  by  the 
constituting  power>of  the  state,  nor  by  the  ordinary  legislature,  which 


(  7  ) 


remains  still  unwritten ,  which  every  body  is  presumed  to’know,  and 
punishable  for  violating ;  and  yet  it  is  acknowleged  to  be  unknown 
in  all  its  branches  to  any  one  man  ;  this  indefinite  scheme  of  sub- 
telty  we  shall  leave  out  of  the  discussion,  in  order  to  pursue  those 
branches  of  government  which  are  understood,  are  written,  and 
which  we  can  approach  and  touch  and  examine  without  difficulty 
or  much  effort  at  investigation ;  we  investigate  the  system,  but  leave 
the  common  law  for  other  pens. 

Much  has  been  said  on  the  subject  of  checks  and  balances  in 
government ;  but  experience  proves,  that,  as  a  check  or  balance,  it 
is  no  matter  of  what  number  of  branches,  powers,  or  authorities  an 
original  system  is  constituted ;  for  when  once  they  are  filled  with 
officers ,  unless  otherwise  checked  than  by  each  other ,  there  is  such 
a  tendency  in  men  to  serve  themselves,  that  the  different  authorities, 
or  deputed  officers,  too  frequently  unite,  and  form  a  preponderance 
contrary  to  the  original  designs  of  their  government. 

Experience  proves  that  there  is  no  check*— there  can  be  none ,  but 
the  people  ;  and  when  ever  they  give  up  their  power  absolutely  to 
any  set  of  men,  under  any  modification,  without  reserving  to 
themselves  a  short  periodical  resumption  of  their  power,  there  is 
an  end  to  liberty,  as  far  as  the  resignation  extends. 

Although  we  can  have  no  doubt  of  the  virtue  of  a  majority  of 
the  officers  in  any  new  society,  in  the  first  instance,  if  taken  fairly 
from  the  people,  in  so  enlightened  a  country  as  ours,  yet  a  political 
institution  should  be  so  formed,  as  effectually  to  secure  fidelity,  to 
discourage  corruption,  and  in  the  most  easy  manner  to  provide  for 
the  removal  of  unprincipled  officers. 

All  men  naturally  love  power,  the  virtuous  as  well  as  the  vicious ; 
they  love  wealth  also  ;  as  well  on  account  of  the  ease  and  comfort 
which  it  procures,  as  of  the  power  which  is  attendant  on  its  posses¬ 
sion  ;  hence  there  is  an  inducement  for  officers  to  do  well,  if  they 
are  well  paid,  under  a  periodical  resumption,  independent  of  virtue  ; 
in  order  that  through  their  faithfulness  to  the  interest  of  the  people, 
the  power  and  compensation  may  be  continued. 

Experience  proves  that  nothing  else  secures  the  community  any 
length  of  time  against  tyranny  and  corruption,  but  this  resumption 
of  power ;  or,  in  other  words,  a  political  system,  which  places  every 
officer  at  certain  reasonable  periods,  according  to  the  nature  of  the 
trust  reposed  in  him,  precisely  in  the  same  situation  in  which  he 
was  before  he  was  elected  or  appointed,  as  a  private  citizen,  to  be 
again  submitted  to  the  ordeal  of  public  opinion,  and  elected  or 
appointed,  or  rejected,  upon  the  true  principle  of  democracy — utility 
t \to  the  people. 

If  a  person  who  had  been  in  public  employment  should  have 
been  useful,  and  remains  virtuous,  there  will  be  two  chances  to 
one,  that  he  will  either  be  placed  again  where  he  was,  or  raised 
higher  than  before.  But  if  he  should  have  made  an  evil  use  of 
power,  or  discovered  imbecility  of  mind ;  so  long  as  wisdom  and 


t 


s 

J 


(  8 

virtue  predominate  in  the  community,  so  long  he  will  be  necessi¬ 
tated  to  mix  with  the  people,  without  putting  them  to  the  expence 
of  a  trial.  .  Human  wisdom  is  not  competent  to  contrive  so  power¬ 
ful  an  auxiliary  of  virtue,  so  imperious  a  check  upon  vice  as—* 

PUBLIC  OPINION. 

Under  all  political  systems  hitherto  adopted,  which  have  carried 
with  them  the  idea  of  freedom,  and  a  security  of  rights,  the  powers 
and  duties  have  been  divided,  and  partially  committed  to  different 
assemblages  of  men,  under  different  names,  and  for  different  pur¬ 
poses  ;  in  order  that  each  might  form  a  check  on  the  others,  and  all 
on  each.  But  independent  of  the  idea  of  checks,  there  can  be  no 
doubt,  that  in  thus  distributing  duties  among  several  classes  of 
officers,  under  the  same  system ;  provided  they  are  nut  uselessly 
numerous ,  advantages  result ;  more  talents  and  virtue  may  be  called 
into  action ;  duties,  by  being  simplified,  are  better  understood,  and 
may  be  better  performed :  more  time  is  required  to  corrupt,  and 
where  corruption  arises,  more  wealth  is  necessary  to  influence  men 
to  base  purposes.  The  history  of  government,  however,  sorrowfully 
evinces  the  necessity  of  other  checks,  than  officers  checked  by  officers , 
or  officers  checked  under  an  idea  of  virtue,  except  as  it  exists  in  a 
community,  or  nation.  It  is  in  public  life  as  it  is  in  private  agency ; 
there  is  no  perfect  safety,  without  frequent  accountability ;  and  no 
accountability  can  be  safe,  but  that  which  is  directly  or  indirectly 
to  tl\e  people,  because  they  alone  are  interested. 

Human  nature  being  fond  of  acquiring  power,  and  seldom 
willing  to  relinquish  it ;  in  almost  every  instance  where  power  has 
been  unlimited  in  extent  or  duration,  it  has  been  abused.  And 
although  this  abuse  may  have  arisen  from  weak  heads,  as  well  as 
from  corrupt  minds,  yet  it  requires  a  corrective  to  secure  the 
community  against  its  evil  consequences  in  either  case.  This 
furnishes  a  sound  reason,  why  every  officer  in  government  should 
have  all  his  duties  defined,  and  be  limited  to  a  certain  portion  of 
time.  With  some  it  might  be  for  a  longer,  with  others  for  a 
shorter  period.  But  they  should  always  be  elected  by  the  people 
themselves,  when  practicable  ;  but  if  inconvenient,  then  by  faithful 
agents  to  whom  that  power  had  been  previously  delegated  for  the 
express  purpose. 

When  the  people  delegate  this  power,  it  is  much  safer  for  them 
to  place  it  in  the  hands  of  a  large  body ,  than  a  small  one ;  or  than 
in  the  hands  of  one  man  !  For  thereby  patronage  and  its  conse¬ 
quences  favoriteism  and  corruption,  will  be  proportionably  pre¬ 
vented. 

Mankind  are  too  generally  selfish,  and  will  sometimes  be 
warped  from  principle  by  interest ;  but  in  a  large  body,  there  will 
be  a  diversity  of  interests,  and  a  number  of  leading  members 
differently  engaged  in  those  interests ;  some  of  whom  would  be 
corrupt  enough  to  secure  their  friends  at  the-  expence  of  their 
country,  if  an  opportunity  offered ;  but  the  private  interest  of 
others,  nay  envy  itself,  vicious  as  it  is,  in  the  absence  of  virtue, 


'S 


(  9  ) 

might  be  forced  to  supply  its  place,  and  would  have  a  strong 
tendency  to  prevent  improper  appointments. 

Under  such  circumstances,  from  the  large  number  of  electors, 
there  would  be  less  chance  of  bargaining,  and  a  greater  probability 
that  the  result  would  be,  the  selection  of  suitable  characters. 

Periodical  accountability  should  be  so  frequent  as  to  produce  cir¬ 
cumspection  ;  but  there  should  not  be  so  many  officers  elected  or 
appointed,  at  any  one  period,  as  to  endanger  public  tranquillity, 
through  the  anxiety  which  might  be  excited,  on  the  failure  of  their 
favorite  measures,  when  the  most  obnoxious  were  driven  bv  the 
people  from  office. 


ESSAY  II. 

ON  THE  DISTRIBUTION  OF  POWER  AMONG  THE  DELAGATES 

of  The  people. 

IN  Pennsylvania  a  constitution  or  system  of  government  has  been 
formed  and  adopted,  consisting^  three  branches,  legislative,  exe¬ 
cutive  and  judicial. 

1  he  legislature  is  divided  into  senate  and  house  of  representatives. 
Tne  hi  st  a  small  body  of  26  persons  ;  one  fourth  of  the  members 
go  out  annually,  and  those  elected  in  their  places  continue  in 
office  four  years.  The  other  a  larger  body,  of  106  persons  elected 
annually.  These  two  bodies  by  a  concurrent  vote  pass  bills,  which 
if  approved  by  the  executive,  become  law. 

The  executive  is  a  single  person,  elected  by  the  people  triennially  J 
he  is  denominated  governor ,  elected  for  three  years,  but  is  eligible 
nine  years  in  succession.  I-I is  general  powers  and  duties  are— 
1.  Negative  legislation : — 2.  Making  appointments— and,  3.  See¬ 
ing  the  laws  faithfully  executed. 

The  judiciary  or  courts  of  law,  under  the  direction  of  judges 
differently  namod,  and  with  different  powers,  from  a  single  justice 
of  the  peace,  up  to  the  judges  of  the  supreme  or  state  court.  All 
these  officers  receive  their  appointments  from  the  governor,  hold 
their  commissions  without  limitation  of  time,  under  the  vague  and 
rutile  terms,  during  good  behaviour  j  and  except  in  the  cases  of  ad¬ 
dress  or  impeachment  by  the  legislature,;  (both  of  which  modes  of 
address  and  control  are  now  considered  fallacious,)  are  independent 
of  the  governor  who  appointed  them,  and  of  the  people  also,  under 
the  present  constitution — or  form  of  government. 

1  hese  various  principles  descend  minutely  in  their  detail,  into 
various  branches,  and  when  viewed  together,  shew  plainly, 
that  the  leading  men  in  the  convention,  who  framed  it,  had  nothing 
.more  constantly  in  their  view,  than  the  British  system  of  king 
lords,  commons,  and  the  court  of  king’s  bench  as  their  model.  It 

15 


(  M  ) 


^>e. ing  too  much,  that  they  were  corrupt;  but  it  may  bsf 
said,  without  danger  oi  error,  that  they  were  either  very  ignorant, 
01  \  en  ad\  erse  to  the  principles  of  free  and  equal  government ; 
they  wanted  to  retain  the  essence  of  monarchy  and  aristocracy  -r 
they  had  neither  a  king  nor  a  nobility  ;  and  happily,  it  must  require 
more  than  an  age  or  two  of  corruption,  before  public  opinion  could 
be  so  much  debauched  as  to  suffer  any  to  be  established. 

The  basis  of  our  constitution,  nevertheless,  is  good,  so  far  as  it 
relates  to  periodical  elective  representation,  but  no  farther.  The 
form  could  have  been  better,  the  checks  more  fitly  adapted  to  the 
safety  and  the  interests  of  the  people,  so  that  they  would  have  operated 
more  strongly  against  the  intrigue  and  corruption  of  incidental  rulers. 

The  theory  of  the  constitution  is,  that  the  senate,  the  least  body 
in  number  but  most  permanent,  is  made  a  check  on  the  represen¬ 
tatives;  and  the  executive  a  check  on  both.  '  But  were  not  all 
three  checked  periodically  by  new  elections  from  the  people  (for 
herein  is  all  our  safety)  there  can  be  no  doubt  but  their  decrees 

would  become  as  tyrannical  as  if  made  by  one  branch,  or  even  by 

one  man^ 

According  to  the  theory,  the  house  of  representatives  is  pre-sup- 
posed  to  partake  more  of  the  passions  and  versatility  of  the  people, 
than  the  senate ;  but  surely  it  has  shewn  a  more  sensible  feeling  of 
their  wTants  and  necessities,  and  represents  more  truly  their  recent 
state.  If  therefore  liberty  be  safe  in  any  part  of  our  system,  it 
must  be  in  such  a  numerous  body,  selected  so  largely  and  lately 
from  among  their  constituents. 

Both  branches  have  equal  controul  over  the  treasury,  except  in 
the  joint  vote  at  the  treasurer’s  election ;  then  the  house  of  repre¬ 
sentatives,  from  their  greater  number,  have  it  in  their  power  to  e- 
lect  whom  they  please. 

It  is  true,  it  is  a  principle  establised  that  revenue  bills  must  origi¬ 
nate  in  the  house  of  representatives ;  this  is  a  very  absurd  and  total¬ 
ly  inapplicable  imitation  of  the  supposed  right  of  the  English  house 
of  commons ;  yet,  if  money  is  to  be  raised,  it  is  not  material  in  which 
house  a  bill  originates ;  for  although  the  senate  is  farther  removed 
iiom  the  people,  b)  the  difference  of  one  and  four  years  tenure  of 
office,  y  et  it  can  .  cneck  any  money  bill  in  its  passage,  or  carry  it 
througn  ;  which  is  all  the  house  of  representatives  can  dp,  after  its 
first  stage ;  their  persons  and  property  are  alike  involved  in  the 
burthen  and  their  property  in  the  measure.  * 

In  England,  fiom  w  i.ence  this  principle  was  imported  with  others 
that  are  even  worse,  the  house  ol  lords  represents  the  hereditary 
nobility;  that  is  they  represent  themselves,  and  several  of  them  are 
either  members  or  dependants  on  the  royal  family.  There  it  pre 
vents  the  commons  from  being  uselessly  teased  by  repeated  propo¬ 
sitions  for  raising  money,  when  tney  do  not  intend  to  gfant  any. 
t  has  some  application  there,  where  elections  are  influenced  by  the 
miwistr)  ,  it  is  a  privilege  wrrested  from  the  nobility,  whoneverthe 
e^s  contend  for  it  still ;  but  here  it  is  useless,  tho’  perfectly  harmless. 


(  n  ) 


t 


Two  branches  unequally  constituted  are  calculated  to  retard  legis* 
lation  5  the)  ai  e  expensi\  e  on  that  account ;  but  bills  by  being  retarded) 
ma7  perfected  they  say  ;  and  when  pernicious,  are  more  likely 
to  fail  than  to  be  compleated.  There  is  more  time  allowed  for  ex¬ 
posing  errors,  and  correcting  mistakes,  where  there  is  a  double 
legislature.  The  senate  is  never  to  be  more  than  one  third,  nor 
less  than  one  fourth  of  the  number  of  members  in  the  house  of 
representatives.  But  this  number  is  too  large  and  expensive  for  a 
mere  revisory  body.  It  cannot  produce  talents  and  virtue  superior 
to  the  other  chamber,  because  it  is  composed  of  persons  ti  ken 
by  the  same  persons  from  the  same  source,  partly  for  the  same 
purposes.  It  is  too  small  to  be  out  of  the  reach  of  corruption  ;  es¬ 
pecially  while  such  unbounded  patronage  rests  in  the  executive.  It 
deliberates  at  the  same  time,  under  the  same  roof,  and  mixing  fre¬ 
quently  w  ith  tne  members  of  the  other  branch,  must  partially  par¬ 
take  of  the  same  passions  and  be  exposed  from  its  small  number  to 
intrigues.  By  being  too  far  removed  from  the  power  of  the  people, 
it  has  a  portion  more  of  aristocracy,  and  arrogates  to  itself  a  little 
more  consequence  ;  pays  a  little  less  attention  to  the  public  will,  and 
is  from  these  causes  an  unsafe  and  improper  body  for  the  true  ends 
of  legislation. 

In  order  to  have  the  compleat  expression  of  the  public  will  in 
the  legislation,  executive  patronage  either  should  not  be  suffered  to 
exist,  or  the  power  of  appointment  should  be  placed  in  other  hands  ; 
or  members  of  the  legislature  should  not  be  competent  for  any  office! 
Under  an  intriguing  governor,  so  small  a  body  will  be  dangerous 
from  the  common  frailty  of  man.  For  if  a  bill  were  about  to 
pass,  to  check  useless  power ;  or  a  law  to  be  repealed,  which  was 
more  favourable  to  the  patronage  of  the  executive,  than  to  the  liber¬ 
ty  of  the  people  ;  the  senate  being  small,  and  a  majority  on  the 
question  smaller ;  il  two  or  three  members  should  be  corrupt,  and 
any  office  of  emolument  within  the  gift  of  the  executive,  it  could 
easily,  and  without  any  commitment,  be  held  out  as  an  induce¬ 
ment,  as  a  price  for  their  votes,  when  opposed  to  the  executive, 
and  would  frequently  destroy  the  measure. 

Without  the  total  alteration  of  the  power  of  appointment  which 
would  place  the  legislature  out  of  the  way  of  temptation  ;  it  would 
be  bettei  to  have  a  senate  as  numerous  as  the  house  of  representa¬ 
tives  ;  for  it  is  safer  to  trust  the  warmth  and  even  passions  oi  a 
large  body  taken  annually  from  the  people,  guarded  as  they  ever 
will  be  by  their  virtue,  than  to  the  wisdom  of  a  small  body  f  not  a 
very  great  deal  1 iviser  than  the  others)  whose  opinions  can  easily  be 
known  before  a  vote  is  passed. 

1  he  senate  or  first  branch  of  a  double  legislature  to  be  safe  and 
useful,  should  be  as  numerous  as  the  house  of  representatives.  Its 
members  should  be  elected  annually,  in  common  with  the  members 
of  the  other  branch,  and  selected  by  lot,  w  en  the  whole  convened 
,orthe  purpose  of  legislation.  If  small  aristocracies  or  selfish  facr 


(  12  ) 


dons  snould  her.  e  been  formed,  in  the  former  houses,  or  become 
formed  among  the  memoers  before  the  annual  meetings  their 
weight  and  influence  would  be  effectually  broken  by  the  separation 
of  tne  influential  members  by  lot  into  different  houses,  where  they 
would  probably  receive  a  new  and  better  bias,  their  attention  would 
'  be  diiected  from  partial  and  selflsh  plans  ;  and  finally,  when  private 
interest  could  not  be  served,  their  minds  would  be  more  strongly 
di awn  with  the  virtuous  members  to  the  public  good;  and  then 
public  virtue  would  supercede  thq  prevailing  avarice  of  office  and 
lust  for  public  money. 

These  observations  will  not  be  relished  by  those  who  believe  ru¬ 
lers  less  selfish  than  the  history  of  all  governments  prove  too  many 
of  them  to  be  ;  and  those  concerned  in  unfair  practices  would  drive 
propositions  for  a  reform,  from  the  community  ;  but * experience 
annuady  evinces,  that  man  comes  into  the  legislature,  and  into  eve- 
i  y  department  of  government  with  the  frailties  of  human  nature 
about  him.  Such  as  he  has  been  at  home,  in  private  life,  such  ) 
will  he  be  there  ;  and  every  possible  temptation  to  abuse  ought  to  be 
avoided  in  the  original  system,  and  removed  from  having  any 
chance  of  operation  upon  his  mind. 

.  The  most  v  irtuous  and  honest  politician  meets  public  life  by  the 
aid  of  his  friends,  to  whom  he  must  feel  a  certain  portion  of  gratitude, 
w  Inch  tne  system  should  render  him  unable  to  discharge,  at  the 
public  expense  or  in  any  other  way,  than  in  faithfully  attending  to 
the  public  good,  m  the  honest  discharge  of  the  duties  of  his  office. 

But  now  he  is  no  sooner  in  the  legislature,  then  he  sees  the  exe¬ 
cute  e  clothed  with  such  ample  powers,  that  he  knows  he  can  fully 
recompense  his  particular  friends  by  recommending  them  for  ap¬ 
pointments,  provided  he  can  anchor  in  the  port  of  executive  grace. 

T.  his  never  will  be.  difficult,  while  a  governor,  six  years  out  of  nine 
needs  reciprocal  aid.  .  „ 

A  .new  member  of  the  legislature  not  fully  understanding  the 
principles  of  democracy  ;  not  perceiving  that  public  characters  must 
nil  important  offices,  or  public  confidence  in  the  goverment  will 
diminish  ;  innocently  believes,  that  offices  may  as  well  be  filled  by 
one  set  of  men  as  by  another,  so  far  as  respects  the  state,  if  the 
duties  are  but  well  performed ;  but  as  it  respects  himself,  it  will 
become  genial  with  his  feelings,  entirely  to  serve  those  friends, 
who  have  hitherto  served  him ;  and  reconciles  its  justice  to  his 
mind,  by  endeavouring  to  believe,  that  the  state  is  well  served. 

A  citizen  on  his  first  entrance  into  the  legislature,  before  his  mind 
becomes  acquainted  with  the  corrupting  nature  of  patronage,  is,  be- 
iore  he  perceives  it,  fast  progressing  into  a  labyrinth  of  executive 
influence,  without  suspecting  himself  of  impropriety ;  and  without 
strictly  examining  the  tendency  of  his  actions ;  until  one  commit¬ 
ment  after  another,  renders  it  difficult  for  him  to  make  a  safe  and 
vonoiable  retreat.  It  is  only  after  he  has  committed  errors  that  he 
mscoveis,tiie  cause,and  the  progress  in  which  he  fell ;  and  nine  times 


<  13  ) 


in  ten,  he  has  too  much  false  pride,  or  too  little  resolution  to 
trace  back  his  steps  or  correct  his  course. 

Idle  members  of  the  legislature,  notwithstanding,  have  as  good 
a  right,  under  the  present  system,  as  other  men  have,  to  receive 
commissions  from  the  executive ;  the  same  right  to  procure 
them  for  the  public  characters  who  are  their  friends ;  but  the 
evil  lies  in  their  being  tempted  by  the  hope  of  office,  to  give  such 
votes  as  unnecessarily  augment  the  already  enormous  power  and 
patronage  of  the  officer  to  whom  the  duties  of  appointment  is  en¬ 
trusted  ;  to  serve  a  host  of  his  creatures,  who  always  surround 
the  legislature,  read  his  will,  and  whisper  his  wishes  to  the 
members.  ^ 

Under  such  circumstances,  the  senate  composed  of  but  few 
members,  seme  of  them  neither  armed  against  intrigue  nor  always 
sufficiently  conversant  with  the  world  to  suspect  it ;  of  others  perhaps, 
designedly  pursuing  every  executive  measure  from  selfish  motives, 
must  always  be  dangerous. 

But  suppose,  for  a  moment,  that  executive  patronage  were  done 
away  ;  still  that  small  body,  from  the  very  weakness  of  human  nature, 
would  be  unsafe.  The  weaker  members  would  be  assailed  by  the 
cunning  and  wealthy,  and  pursued  from  house  to  house,  for  the 
purpose  of  influencing  a  majority  in  the  carrying  of  some  sinister 
measures ;  or  with  design  to  defeat  some  laudable  and  useful  prin¬ 
ciple,  which  had  passed  the  house  of  representatives.  It  is  no 
uncommon  saying  that  a  good  dinner  Jias  often  carried  a  bad 
measure. 

But  if  there  be  danger  in  thus  forming  an  avenue  to  power, 
and  leaving  it  in  the  hands  of  a  few,  who  will  naturally  be  disposed 
to  serve  themselves  and  their  friends,  in  preference  to  discharg¬ 
ing  their  duty  ;  how  much  more  dangerous  must  it  be,  to  place 
that  power  in  the  hands  of  one  man ,  and  in  addition  thereto, 
giving  him  a  negative  on  every  law  about  to  pass,  that  might  be 
unfavourable  to  the  gratification  of  his  ambition,  or  likely  to  blast  the 
avaricious  pursuits  of  a  surrounding  class  of  designing  men. 

The  absurdity  in  a  free  government,  of  an  executive  negative,  is 
not  common  to  all  the  states  of  the  union.  In  several  of  the  states, 
for  example  Jersey,  the  executive  has  no  share  affirmative  or  ne¬ 
gative  in  the  legislative  power ;  and  with  good  reason ;  for  the 
principle  is  a  total  subversion  of  the  principles  of  a  free  govern¬ 
ment  and  of  reason  itself.  The  will  of  the  majority  is  the  supreme 
Jaw,  according  to  the  principles  of  our  natural  and  equal  rights. 
But  here  the  will  of  one  man,  is  put  in  competition  with  the  v/jU 
of  150  men;  and  he  is  authorised  to  render  nugatory  all  that  they 
have  done. 

But  this  is  not  the  whole  of  the  absurdity,  the  two  bodies  of  mep 
composing  the  legislature, deliberate  and  debate  upon  all  measures; 
and  every  measure  brought  before  each  house  must  be  read,  and 
open  to  debate  and  objection  if  required  at  each  time  ;  and  the  con¬ 
currence  of  a  majority  of  each  house  is  requisite  to  its  passage 


(  14  ) 


While  the  executive  who  neither  hears  the  arguments  nor  has  them 
reported  to  them ;  and  who  from  the  mere  constitution  of  human 
nature,  cannot  be  presumed  to  know  every  thing,  or  any  thing,  as 
well  as  150  men  combined  and  deliberating — .this  one  man  can 
undo  at  a  dash  of  caprice,  or  under  the  operation  of  selfishness  or 
passion,  all  that  they  have  deliberately  done. 


ESSAY  III. 

IS  THE  TENURE  OF  ‘THE  JUDICIARY — COMPATIBLE  WITH  REPRE¬ 
SENTATIVE  GOVERNMENT ? 

WHEN  we  view  the  officers  in  the  judiciary  system,  stand  inde¬ 
pendent  of  the  people,  out  of  the.controul  of  their  constituents  ;  not 
responsible,  but  uncontroled  and  independent ,  the  prospect  is  unfavor¬ 
able  to  liberty. 

In  following  the  British  institutions,  the  convention  lost  sight  of 
representative  democracy ,  and  a  periodical  responsibility,  that  just 
easy,  and  rational  mode,  of  removing  obnoxious  or  useless  officers, 
or  of  rewarding  by  restoring  the  worthy  and  faithful,  without  dan¬ 
ger  to  the  government,  or  expence  to  the  people. 

The  juridical  portion  of  the  constitution,  appears  as  if  it  was 
purposely  formed  for  the  convenience  of  the  judges,  rather  than  for 
utility  to  the  people  ;  from  a  contemplation  of  it,  a  stranger  might 
suspect  that  the  society  was  instituted  for  the  benefit  of  the  judici¬ 
ary  alone ;  affording  evidence,  that  legal  characters  influenced  the 
convention ;  that  each  lawyer  supposed,  the  day  must  come  which 
would  elevate  him  on  the  bench  of  the  supreme  court ;  or  that  his 
merit  would  raise  him  to  the  chair  of  chief  justice  of  the  state. 

The  phrase  independence  of  the  judges ,  is  borrowed  from  Britain  ; 
in  antient  times  the  judges  were  removable  at  the  pleasure  of  their 
king ;  that  is  like  officers  of  the  army,  they  held  their  commissi¬ 
ons  during  the  king’s  pleasure;  the  judges  in  those  days  were 
found  too  subservient  to  their  creator  and  the  disposer  of  their 
fortunes;  great  tyranny  was  exercised  over  the  people,  through 
the  influence  of  the  executive  power  over  the  judges  ;  and  at  a  fa¬ 
vorable  occasion,  when  the  popular  voice  had  some  influence,  the 
judges  were  made  by  law,  independent  of  the  executive ,  not  of  the 
people  ;  for  they  never  were  since  the  Norman  conquest  dependent 
on  the  people.  Their  tenure  of  office  by  the  modern  law,  was  dur¬ 
ing  good  behavior ;  but  of  this  good  behavior,  there  is  no  explana¬ 
tion  in  what  it  consists,  nor  what  is  bad  behavior.  This  imitation 
of  the  British  system,  therefore  is  in  no  shape  applicable  to  free 
government ;  the  first  principle  of  which  is  responsibility  to  and 
not  independence  of  the  people.  The  experience  we  have  had 
aiso  shews  that  the  practice  is  as  absurd  as  the  theory  was  false, 
inapplicable,  and  delusive. 


C  >5  ) 


The  judges  ought  to  be  independent  of  the  individuals  over  whose 
causes  they  preside,  but  not  of  the  community  who  created  them. 
They  now  form  a  government  within  a  government;  they  may  re¬ 
present  the  executive,  what  they  call  the  bar,  or  themselves,  but 
they  do  not  represent  or  even  duly  regard  the  people. 

A  community  must  be  depraved,  if  respect  for  virtue,  do  not  so 
far  predominate,  as  that  a  judge  would  be  the  more  beloved  and 
esteemed,  for  every  act  of  impartial  justice  done  between  individuals, 
although  the  individuals  themselves  might  be  offended.  Virtue  in 
the  person  of  an  elective  judge,  would  have  nothing  more  to  fear, 
than  it  now  has  in  an  elective  legislature.  If  they  mean  to  be  un¬ 
faithful  or  tyrannic,  the  people  ought  to  make  them  afraid. 

There  are  wrong  ways  of  doing  right  things.  A  judge  may  be 
just  and  impartial,  yet  another  may  be  tyrannical  and  overbearing ; 
one  may  despise  and  insult  the  suitors  ,  to  whom  in  other  respects 
he  deals  impartial  justice.  Such  judges  as  the  latter  ought  justly 
to  fear  a  periodical  resumption  of  power ;  a  being  called  to  give  an 
account  of  his  stewardship ;  he  ought  never  to  have  been  a  judge 
among  a  free  people.  ^ 

It  is  possible  also- — barely  possible,  that  in  some  instances,  a  judge 
every  way  qualified  as  a  man  and  officer,  might  be  left  out  of  office  ; 
and  a  worse,  elected  or  appointed  to  serve  the  people  in  his  place* 
This  although  an  evil,  is  of  less  magnitude  in  government,  and  if 
the  act  come  directly  from  the  people  themselves,  the  consequence 
would  be  easier,  and  more  peaceably  borne  by  them,  than  if  it  had ' 
resulted  from  any  other  source ;  and  in  a  periodical  resumption,  a 
remedy  presently  presents  itself;  if  they  had  made  a  wrong  choice, 
they  only  would  feel  it ;  and  the  remedy  would  follow  the  disco¬ 
very. 

To  be  a  good  judge,  it  is  not  only  necessary  that  a  man  should 
be  wise  and  impartial,  but  the  people  must  think  him  so.  He  who 
never  had,  or  who  loses  the  public  confidence,  ought  not  to  be  a 
judge  ;  his  decisions  will  net  be  satisfactory  ;  he  cannot  be  useful  ; 
and  then  the  first  principle  of  government  recurs,  “  For  whose  good 
wes  the  man  appointed ?”  If  for  the  people’s  good,  surely  he  ought 
to  be  removed,  because  instead  ox  a  good,  as  was  intended  for  them 
he  has  become  an  evil. 

In  England  the  case  is  different ;  government  there,  is  only  profes¬ 
sedly  intended  for  the  good  of  the  people,  and  even  that  in  a  suf  or¬ 
dinate  degree ;  for  their  good  is  held  to  be  subservient  to  a  good 
that  is  esteemed  greater;  that  of  the  nobility  and  royalty.  The 
lung  is  in  fact  at  the  head  of  the  nobiiity,  for  in  all  cases  where  the 
crown  or  nobiiity  becomes  a  party  in  a  suit,  it  is  right  in  British 
policy,  that  the  judge  should  be  independent  of  the  people — for  says 
Iilackstone  “  He  is  the  mirror  by  which  the  king’s  image  is  reflect¬ 
ed”  in  order  that  if  there  should  be  a  departure  from  justice,  what 
to  the.  nobility  appears  to  be  the  least  interest,  the  interest  of  the 
people,— should  be  sacrificed. 


(  16  )  ' 

✓  V 

It  is  a  sacrifice  of  liberty  to  place  the  judges  independent  of  the 
community,  whose  minister  they  are,  and  who  pay  them  for  their 
service,  and  for  whose  benefit  they  were  instituted ;  and  to  whom, 
by  election  or  re-appointment,  they  ought  to  be  periodically  ac¬ 
countable. 

Under  this  view,  our  judiciary  system  appears  pregnant  with 
evil,  from  the  chief  justice  down  to  the  most  paltry  justice  of  peace. 
These  officers  might  have  been  legally  appointed  under  the  pre¬ 
sent  constitution,  and  many  of  them  are  good  men  ;  but  where 
they  are  not,  they  must  nevertheless  be  justices,  or  judges  during 
life  ;  the  evil  under  the  present  system  must  remain,  without  any 
effectual  remedy.  Their  accountability  by  impeachment  or  ad¬ 
dress  through  the.  legislature,  has  been  proVed  to  be  much  worse 
than  ideal ;  it  is  so  far  removed  from  the  people,  that  many  will  bear 
insult  and  injury,  rather  than  be  at  the  expence  and  anxiety  of  a 
regular  hearing  before  that  body.  And  it  is  melancholy  to  state, 
that  men  who  have  had  public  virtue  enough  to  complain  of  hideous 
injuries,  have,  instead  of  justice,  entailed  on  them  and  their  families 
new  persecutions,  amounting,  as  far  as  public  feeling  and  justice 
would  admit,  to  a  proscription  in  the  midst  of  society. 

This  independence  of  the  judges ;  this  appointment  during  good 
behaviour,  is  one  of  the  greatest  absurdities  in  a  democracy  that 
can  possibly  be  imagined ;  and  in  many  instances  operates  exactly 
the  reverse  of  what  was  expected  by  the  people.  In  many  instan¬ 
ces  it  is  a  continuance  during  bad  behaviour.  It  is  truly  the  coun¬ 
terpart  of  hereditary  government;  for  though  the  sons  of  rulers  are 
not  rulers  by  descent,  yet  by  descent  thousands  are  ruled  under  an 
indirect  ancestral  choice,  in  the  aristocratic  appointment  and  conti¬ 
nuance  of  the  judges  and  justices  of  the  peace  ;  and  consequently 
by  men,  whom  neither  directly  by  themselves,  nor  indirectly  by 
their  agents,  have  they  ever  had,  or  ever  can  have  a  vote  in  ap¬ 
pointing. 

1  he  judiciary  is  composed  of  a  numerous  body  of  men ;  they 

form  an  aristocracy  which  has  nothing  to  check  its  growth,  but 

public  opinion  and  public  virtue.  While  this  security  lasts,  they 

cannot  do  much  evil,  but  the  moment  these  fail,— and  they  will  ebb 

and  flow  like  other  things,— our  situation  will  be  gradually  growing 

worse,  and  unless  the  principle  be  amended,  the  consequences  to 

be  expected,  are  incalculable  evils  to  ourselves,  and  our  latest 

posterity. 

*  # 


(  17  ) 


ESSAY  IV. 

DOES  THE  JUDICIARY  SYSTEM  PRODUCE  A  REAL  REDRESS  OP 

WRONGS ? 

THE  judiciary  forms  an  aristoracy  which  has  nothing  to  check  its 
growth,  but  public  opinion  and  public  virtue  ;  these  operate  but  very 
slightly  ;  yet  they  must,  under  the  present  public  impression,  in 
due  time  provide  a  better  system  as  a  remedy  that  will  remove  the 
evil.  It  is  an  evil  which  to  be  proved  needs  only  to  be  mentioned  ; 
it  comes  home  to  the  door  of  every  man  ;  good  or  bad,  wise  or  igno¬ 
rant  ;  almost  all  see  the  effects  and  thousands  feel  them. 

Allusion  is  now  more  particularly  made  to  the  justices  of  the 
peace.  There  are  many  good  men  among  them,  but  a  great  num¬ 
ber,  some  way  or  other,  are  bad  Some  of  them  were  orignally  bad 
men,  both  avaricious  and  immoral.  They  entered  the  office  by 
another  door  than  that  which  democracy  points  out;  they  entered 
through. fa voriteism  and  intrigue.  Others  have  become  bad  officer^ 
by  their  improper  independence  of  the  people.  Weak  heads  have 
become  intoxicated  with  power,  and  they  have  entered1  warmly  with 
the  adherents  to  British  institutions,  into  the  idea  that  an  office  ap¬ 
pointed  for  public  use  and  convenience,  when  an  individual  is  invested 
with  its  authority,  constitutes  a freehold,  estate — or  estate  in  fee  simple. 

No  doubt  many  of  these  men  once  supposed  government  was  made 
for  the  good  of  the  people  ;  but  being  seduced  by  an  improper  inde¬ 
pendence,  they  now  act ,  as  if  they  believed  that  the  people  were 
made  for  the  good  of  the  magistrates,  and  are  willing  to  turn  them 
to  their  own  convenience  and  aggrandizement.  By  this  means  the 
people  by  their  very  institutions  establish  premiums  for  enmity  and 
and  treachery  to  their  rights  and  interests. 

The  governor  has  power  to  appoint  a  competent  number  of  ma¬ 
gistrates,  of  which  number  also  he  is  the  sole  judge  ;  and  no  law  can  be 
made  under  this  constitution  to  restrain  him,  from  appointing  any 
number  he  may  think  necessary  to  promote  his  influence.  The 
number  has  encreased  ever  since  1 7 90,  with  an  accelerated  pro¬ 
gress,  and  the  more  it  encreases,  the  more  it  must  encrease,  to 
satisfy  the  minidhs  of  power. 

When  one  dies  or  leaves  his  district,  frequently  two  are  appoint¬ 
ed,  because  one  could  not  be  had  central.  Sometimes  the  lormer 
has  returned  and  again  officiated  ;  and  thus  from  one— *h  av-  Wen 
three.  Nay  sometimes  an  elopement  has  taken  place,  and  continu¬ 
ed  for  more  than  a  year,  when  the  officer  has  again  returned  to  his 
station  of  public  business  without  public  confidence,  and  remained 
independent  of  the  people  to  the  disgrace  of  the  community. 

If  a  r,emedy  be  asked  for  these  evils  under  the  present  system, 
the  answer  must  be,  that  there  is  none  ;  there  can  be  noney  but  a  re¬ 
currence  to  the  principles  of  reformation. 

C 


(  18  ) 


The  number  of  justices  is  great ;  we  find  them  in  all  places,  but 
too  seldom  find  them  respectable ; — because  the  office  has  become 
so  cheap,  that  many  of  our  best  citizens  are  not  willing  to  accept 
it ;  and  we  have  no  evidence  nor  security  that  every  new  governor 
will  not  think  it  his  interest  to  make  it  still  cheaper.  For  if  he 
should  be  corrupt,  he  may  count  on  the  encrease  of  justices  as  an 
encrease  of  popularity,  and  calculate  on  their  gratitude  to  support 
his  re-election. 

Although  the  justices  of  peace  are  of  no  expence  to  the  people,  in 
the  first  instance,  yet  they  are  costly  in  the  sequel.  The  weak  and 
vain  officers,  as  well  as  the  corrupt  and  vicious,  have  much  in  their 
power,  either  to  manage  the  disputes  of  their  neighbours  to  their 
own  advantage  ;  to  encrease  them  for  vain  purposes,  or  mer¬ 
cenary  ends,  or  to  quiet  them  for  the  good  of  the  community. 
Corruption  and  design  can  raise  several  actions  out  of  one,  and 
when  there  is  no  periodical  check,  a  bad  heart  will  too  often  indulge 
in  the  evil. 

With  some  justices  this  is  frequently  the  case ;  and  why  is  it  so, 
but  because  they  belong  to  the  executive  who  appoints  them,  and 
not  to  the  people  of  wrhom  they  are  independent ;  or  because  they 
belong  to  themselves,  under  the  present  constitution,  rather  than  to 
either,  being  independent  of  both. 

Impeachment  and  address  are  the  only  modes  pointed  out  by  the 
constitution  for  removal,  and  yet  when  considered  in  their  applica¬ 
tion,  they  are  found  to  be  completely  delusive. 

A  justice  one  hundred  miles  from  the  legislature,  though  he 
should  frequently  do  wrong  in  his  office,  insult  the  citizens,  and  even 
practice  extortion,  is  in  no  great  danger  of  being  brought  before  the 
legislature,  unless  he  should  be  met  with  by  a  man  of  uncommon 
spirit,  who  will  not  be  imposed  upon ;  and  who  will  spend  more 
time  and  money  than  ten  times  his  loss  by  the  justice,  merely  for 
the  sake  of  the  public  good. 

It  is  said  by  the  enemies  of  equal  rights,  that  the  people  are  turbu¬ 
lent,  uneasy  under  wholesome  restraint,  and  could  not  be  supposed 
to  suffer  a  justice  to  abuse  them.  But  experience  proves,  that 
they  are  too  peaceable  to  carry  every  grievance  to  the  legislature, 
and  therefore  very  improper  acts  of  their  justices  pass  with  impu¬ 
nity. 

Men  ought  to  complain  of  evil  when  they  feci  it,  and  if  to  resist 
oppression  with  a  manly  energy  deserve  that  name,  who  is  to  blame, 
the  authors  of  oppression  or  those  who  resist.  But  the  people  fre¬ 
quently  bear  the  abuse  of  power  too  long ;  even  until  their  rulers 
have  filled  the  measure  of  their  iniquity ;  and  it  is  no  wonder,  if  in 
the  hour  of  desperation,  they  proceed  to  acts  of  extravagance, 
which  every  good  man  in  his  cooler  moments  must  deplore. 

These  are  some  of  the  many  evils  resulting  from  the  justices  be¬ 
ing  independent  ol  the  people.  They  are  evils  which  arise  from 
the  people’s  having  resigned  their  poAver  to  these  officers,  without 
reserving  to  themselves  a  periodical  resumption  of  that  powrer.  By 


(  19  ) 


their  having  abandoned  the  exercise  of  sovereignty  to  the  execu¬ 
tive,  in  a  case  where,  without  any  inconvenience,  they  could  have 
exercised  it  themselves.  In  a  case  where  he  cannot  have  correct 
information,  although  he  is  obliged  to  act ;  and  where  they  have  all 
the  means  necessary  to  form  a  correct  opinion,  as  to  the  characters 
Which  they*  ought  to  select. 

The  judicial  aristocracy  will  not  favour  these  ideas,  although 
the  wise  and  good  men  among  them  may.  The  selfish  and  evil 
disposed,  will  unite  to  oppose  what  they  believe  to  be  contrary  to 
their  interest  as  officers.  Having  become  obnoxious  to  the  people 
by  their  abuse  of  power ;  having  received  their  offices  in  many  in¬ 
stances,  without  the  knowledge  of  the  people,  and  in  others  contra¬ 
ry  to  their  wishes,  they  dread  any  improvement  of  the  present 
system,  because  it  would  put  them  on  the  back  ground  of  the  com¬ 
munity,  where  many  of  them  would  ever  remain. 

It  is  a  principle  in  democracy,  and  it  is  a  just  one,  that  whatever 
power  the  people  in  their  individual  capacity  can  conveniently 
exercise  in  an  orderly  way,  should  never  be  delegated  to  officers ;  and 
as  they  can  conveniently  and  orderly  elect  their  justices  of  peace  in 
such  districts  as  are  or  may  be  formed,  they  ought  not  to  delegate  that 
power  to  a  governor  or  to  an  assembly,  but  exercise  it  themselves. 

The  most  domestic  among  the  people,  are  generally  acquainted 
with  each  other,  through  their  townships  and  districts ;  and  all  the 
most  active  characters  especially,  who  would  be  likely  to  be  elected 
justices  of  the  peace,  would  be  well  known  to  every  citizen  ;  it  is, 
therefore,  not  possible  that  in  any  district  whatever,  they  would  be 
so  uninformed  of  each  other,  as  not  to  choose  the  best  men  for 
public  officers. 

But  suppose  them,  by  choice,  to  be  deceived,  and  make  mistakes  ; 
as  the  evil  arose  among  themselves  under  a  system,  that  puts  the 
power  again  into  their  own  hands,  in  a  few  years,  they  would  pa¬ 
tiently  bear  the  consequences,  wait  that  period,  and  take  care  not 
to  place  it  a  second  time,  where  it  had  once  been  abused. 

Although  the  justice  were  not  the  best  of  men,  yet,  under  such  a 
system,  if  he  loved  power,  the  design  of  retaining  it  would  operate 
so  as  to  correct  many  of  the  less  evils  that  might  arise  out  of  a  bad 
disposition. 

Under  this  mode,  the  justices  of  the  peace  must  retain  the  con¬ 
fidence  of  the  people,  or  they  could  not  long  retain  the  office,  which 
would  then  be  founded  upon  confidence.  The  people  would  cease 
to  be  uneasy ;  they  could  remove  the  cause  of  any  uneasiness 
themselves ;  they  could  do  it  without  any  loss  of  time,  or  any 
expence,  at  the  expiration  of  the  period  for  which  their  justices 
were  elected. 

II,  by  chance,  they  injured  themselves  by  leaving  out  a  worthy 
man,  he  would  have  no  right  to  complain ;  he  would  have  known 
that  he  had  been  elected  for  the  good  of  the  people,  to  continue 
until  a  certain  period ;  and  afterwards  at  their  will  to  be  re-elected 
or  rejected.  He  would  have  known  the  tenure  of  his  office,  its 
period  had  been  fulfilled,  and  he  could  not  legally  ask  for  more. 


(  20  ) 


This  mode  of  election  by  the  people,  would  preclude  midnight 
appointments  :  every  thing  would  be  done  at  a  fair  open  township  or 
district  election  It  would  check  the  unprincipled  intriguer,  and 
bring  to  candid  investigation,  the  character  of  every  man  who  became 
a  candidate  for  office. 

Were  the  justices  thus  elected,  within  districts  formed  of  a  con¬ 
venient  size,  without  being  so  small  as  to  create  too  many  officers ; 
the  office  would  soon  rise  in  importance,  many  of  our  best  citizens 
who  have  leisure,  would  accept  the  place  as  an  honorable  trust,  in 
which  they  would  have  every  inducement  to  act  respectably  for  the 
sake  of  their  own  continuance,  as  well  as  the  good  of  their  fellow 
men.  A  bad  man  would  scarcely  be  elected  a  second  time  ;  his  bad 
conduct  the  few  years  of  his  period  in  office,  wcuid  assuredly  consign 
him  to  perpetual  oblivion. 

The  best  criterion  to  judge  of  the  future  is  by  the  past ;  the  justices 
that  were  formerly .  elected  by  the  people,  many  of  them  were 
among  the  first  characters ;  there  was  always  a  sufficient  number 
of  them  in  every  county,  to  conduct  the  business  of  the  courts  with 
decency  and  ability.  It  is  impossible  to  help  contrasting  them 
with  the  present.  In  this  the  people  have  shewn  more  dignity  and 
a  better  understanding  of  their  own  true  interest,  than  all  the  wisdom 
of  two  governors,  aided  by  those  who  surrounded,  and  shaded 
them  from  the  unhallowed  touch  of  the  swinish  multitude.  Upon 
the  whole,  the  present  system  is  calculated  rather  to  prevent  re¬ 
dress  than  to  obtain  it ;  and  to  add  to,  instead  of  diminishing,  the 
evils  of  society. 


ESSAY  V. 

OF  DECEIT’S  ON  -THE  PEOPLE  CONCERNING  JUSTICE. 

THE  abuses  of  judicial  proceedings  in  this  state  have  been  strong¬ 
ly  contested  between  the  bench  and  the  bar  on  one  side,  and  the 
people  on  the  other  for  many  years.  The  two  former  are  inci¬ 
dentally  in  the  exercise  of  the  judicial  power,  and  until  lately,  felt 
themselves  independent  of  the  people.  They  now  indeed  see'  there 
must  at  last  be  a  reform ;  the  idea  goads  them,  and  from 
anticipated  defeat,  they  are  the  more  inflamed  for  domination. 
They  see  that  finally  they  will  be  reduced  to  tire  ranks  of  equality 
with  the  people. 

The  principle  of  arbitration  has  been  developed,  and  successfully 
contended  for ;  even  the  most  thoughtless  have  only  to  be  put  in  mind 
of  their  interest  in  it,  to  know  and  understand  it ;  and  this  has  been 
done  by  able  pens  skilfully  exerted.  But  they  have  partly  contended 
on  bad  ground.  The  principle  though  good  abstracted  from  the 
constitution  will  always  be  lame  under  it 

It  is  evident  to  the  bar,  that  the  words,  trial  by  jury  as  hereto¬ 
fore’  will  always,  to  the  generality,  afford  a  field  for  argument,  on 
which  they  can  perpetually  dilate  ;  that  it  affords  them  pretext  to 
argue  in  favor  of  a  system  which  gives  emolument  and  influence  t© 


N 


(  21  ) 

an  exclusive  sect,  veiled  under  their  cant  in  technicals :  and 
even  to  minds  uncontaminated  with  court  cant  will,  like  the 
glorious  uncertainty  of  the  common  law ,  leave  a  doubt,  whether 
the  convention  intended  to  preserve  every  part  of  the  form 
without  trusting  the  people’s  ordinary  representatives  to  alter 
the  minutest  part,  however  inconvenient.  It  will  leave  a  doubt ; 
for  from  the  features  of  the  constitution  itself,  it  is  plainly  deducible, 
that  the  majority  of  its  framers  doubted  the  wisdom  and  virtue  of 
the  people ;  and  conceived  themselves  of  a  superior  order,  able  to  re¬ 
gulate  their  concerns,  and  therefore  mighf  have  intended  to  leave 
nothing  for  posterity  to  do.  Having  no  errors  in  their  view  to 
correct,  though  the  form  of  the  trial  is  evidently  one,  they  provided 
no  remedy,  no  means  to  remove  them.  They  wished  to  make  the 
people  believe,  what  the  aristocracy  still  inculcate,  that  the  in¬ 
strument  is  sacred  from  the  unhallowed  touch  ;  that  it  is  an  eulogium 
upon  the  wisdom  of  man,  and  might  be  polluted  by  vulgar  hands. 

Under  this  idea  of  perfkctability,  the  form  of  the  trial  is  so  de¬ 
signedly  interwoven  with  the  trial  itself,  that  difficulties  in  a  reform 
stare  the  reformer  in  the  face.  A  reform  is  absolutely  and  evident¬ 
ly  necessary,  but  the  difficulty  is  to  effect  it,  without  infringing  the 
letter  of  the  constitution,  perhaps  its  spirit  also ;  and  when  effected 
consistently  with  that  instrument  drags  too  much  expence  and 
delay  for  the  citizens  who  are  destitute  of  property  and  leisure. 

These  evils  are  unavoidable  ;  they  are  the  effect  of  early  habits, 
and  prejudices,  and  of  artful  subtelties  which  operated  in  the  con¬ 
vention,  and  cannot  be  removed  but  by  a  revision.  Not  by  a 
radical  change  of  the  excellent  principles  of  the  trial  by  jury, 
which  ought  always  to  remain  inviolate  ;  but  by  modifying  the  ex¬ 
pression,  so  as  to  make  the  trial  by  jury  consist  in  a  dispassionate 
and  incorrupt  selection,  an  open  candid  investigation  and  decision  ; 
not  to  be  made  under  less  than  a  specific  number  of  respectable 
citizens,  with  unbiassed  minds,  out  of  the  reach  of  dependence  and 
fear ;  and  who  would  have  no  inducement  to  do  wrong.  Such 
a  jury  trial  ought  to  be  as  fixed  as  the  base  of  the  Alleghany,  but 
the  improvement  of  the  form,  and  the  prevention  of  abuse,  should 
be  left  to  the  ordinary  powers  of  legislation. 

It  is  weakness  or  wickedness  to  contend,  that  under  the  legal 
idea,  the  words  u  trial  by  jury  as  heretofore”  are  adapted  to  the 
present  state  and  wishes  of  society.  The  people  have  been  petiti¬ 
oning  for  a  revision  of  tiiis  very  form  from  time  to  time,  under  the 
idej\  of  extending  the  powers  of  the  justices  of  the  peace.  The 
legislature  in  almost  every  instance,  have  attempted  to  gratify  them, 
but  insurmountable  difficulties  presented  themselves.  They  were 
afraid  of  infracting  the  constitution  on  one  side,  or  restricting  the 
rights  of  the  people  on  the  other ;  and  every  thing  produced,  has 
been  short  of  the  public  wish ;  and  ever  will  be  so,  until  the  hos¬ 
tility  which  impedes  the  improvement,  be  removed  from  the  consti¬ 
tution.  That*being  done,  the  people  will  emancipate  themselves 
from  the  clamour  of  the  aristocracy,  save  much  of  the  expcncc 


( 


2l2 


and  drudgery  of  courts,  and  secure  the  advantages  of  a  cheap  and 
easy  mode  of  arbitration  and  jury  trial. 

1  here  is  no  necessity  in  numerous  cases  for  the  present  form  of 
jury  trial,  m  contentions  about  property.  Even  the  bench  and  bar 
are  willing  to  dispense  with  it  in  contentions  for  small  sums,  and 
the  people  might  do  it  in  all. 

The  bench  and  bar  dispense  at  present  with  not  only  the  form 
of  jury  trial,  but  even  with  the  trial  itself,  if  the  propertv  in  dis¬ 
pute  is  not  worthy  the^attention  of  the  wealthy,  nor  profitable  to  the 
attorney ;  but  when  if  is  to  a  larger  amount,  disputes  with  them 
assume  importance,  become  sacred,  and  must  be  consecrated  bv 
the  nench  and  the  bar.  Every  claim  in  dispute,  above  ten  pounds 
value,  they  believe  should  be  tried  by  a  court  and  jury,  under  the 
operation  of  a  mystic  science,  which  like  Alchemy  of  old,' had  no  other 
\  alue  than  the  technical  absurdity  under  which  it  was  concealed  • 
every  suit  under  that  amount,  may  be  tried  by  any  body ;  even  bv 
arbitrators.  W  hat  absurdity  1  The  claims  bf  the  poor,  of  the  people 
who  earn  their  bread  by  the  sweat  of  their  brow,  under  this  system 
are  not  worth  regarding ;  but  the  claims  of  the  few,  the  rights  of 
wealth,  are  to  be  guarded  by  the  eagle  eye  of  a  lawyer.  But  the 
most  serious  part  of  the  evil  is,  that  when  the  diff  rence  arises  be- 
tw  e^n  a  poor  man  and  a  rich  man,  the  Iattter  has  all  the  advantage 
which  large  fees  hold  over  the  priests  of  justice. 

There  is  not  a  single  reason  in  favor  of  a  jury  trial,  but  what 
Will  apply  to  property  of  small,  as  well  as  large  amount,  when  held 
by  persons  of  corresponding  circumstances ;  and  before  one  court 
as  well  as  before  another ;  then  why  is  it  not  generally  applied  ;  and 
m  chancery  as  well  as  in  other  courts  ? 

I  know  but  little  of  technicals;  I  have  never  renounced  common 
sense  to  learn  them ;  but  in  common  with  others,  I  know  that  a 
cnal  about  the  right  of  property,  is  a  trial  about  property  in  anv 
court ;  and  if  the  jury  trial  in  all  its  forms,  be  essential  to  its  secu¬ 
rity,  I  can  see  but  one  reason  why  it  is  dispensed  with  in  chancery, 
and  m  that  the  bench  and  the  bar  already  having  the  power,  con- 

Sider  them selves  capable  of  transacting  the  business,  without  the 
aid  of  the  people. 

*  ,rhe  n°lse  ^outJury  trial  is  therefore  a  cheat,  it  is  raised  merely 
L°  Tke.eP  thJ  Pe.°Ple  s  interest  out  of  their  own  hands.  The  bench 
and  bar  of  this  state,  have  long  struggled  for  chancery  powers, 
where  no  jury  is  admitted,  and  have  always  been  prevented  by  the 
people  ;  and  always  will  be.  . 

In  land  disputes  at  present,  where  the  board  of  property  decide 
who  has  the  right  of  patenting;  so  far  as  they  arc  uninfluenced  by  the 
executive  and  the -.  bar,  decide  as  arbitrators;  they  decide  as  both 
ouit  and  jury.  I  heir  decisions  are  far  removed  from  the  people ; 
subject  mdirec  ly  and  improperly  to  the  control  of  the  executive 
and  open  at  all  times  to  the  sophistry  of  the  bar;  And,  therefore, 
the  want  of  a  jury  trial  any  more  than  the  want  oflegal  knowledge 
in  .hat  court,  has  never  given  any  umbrage,  to  those  who  were 


(  23  ) 

j  » 

making  so  much  noise  about  the  people  destroying  themselves,  bv 
a  revision  of  the  constitution,  and  reform  of  the  judiciary. 

It  appears  improbable,  that  a  compleat  reform  in  the  judiciary 
will  take  place  agreeably  to  the  general  wish,  previous  to  a  reform 
in  the  constitution.  Like  the  jury  trial,  the  supreme  court  is  so 
interwoven  with  the  system,  and  the  other  courts  so  much  con¬ 
nected  with  it,  that  to  amend  the  detail  under  the  leading  princi¬ 
ples  and  connection,  will  be  found  like  pouring  water  through  the 
wrong  end  of  a  funnel. 

The  present  existing  system  is  derived  from  monarchy  and  aris¬ 
tocracy — the  court  of  king’s  bench,  and  partakes  of  the  spirit  of 
the  monarch  and  his  nobles  ;  but  is  badly  adapted  to  the  habits  of 
men  under  any  genuine  democracy.  The  court  like  the  monarch 
seems  to  dictate,  but  its  dictates  would  be  inoperative,  were  they 
not  aided  by  the  bar,  as  the  wishes  of  the  king  are  aided  by  his 
nobility.  These  two  persons  willingly  unite  when  they  can,  they 
would  be  every  thing  and  let  the  people  be  nothing — nothing  but 
the  machinary  to  be  wound  to  any  purpose  and  to  any  point.  They 
must  be  sworn  to  give  a  true  verdict,  and  starved  till  they  comply 
with  the  wishes  of  the  court.  If  they  agree  among  themselves* 
the  court  may  differ  from  them,  set  their  verdict  aside,  destroy  all 
they  have  done,  and  this  is  the  boasted  jury  trial !  ! 

The  circuit  court  held  by  the  supreme  judges,  within  the  seve¬ 
ral  counties,'  may  be  useful  at  present,  but  if  ever  we  should  have 
a  democratic  court — a  representative  court  within  each  county,  in 
which  the  people  will  have  confidence,  its  use  except  in  criminal 
cases,  will  be  totally  superceded. 

The  general  opinion,  until  lately,  seems  to  have  given  the  circuit 
court  only  the  trial  of  the  most  important  cases,  to  which  the 
knowlege  of  the  inferior  courts  wras  not  adequate.  But  if  any 
knowlege  be  wanting,  it  cannot  be  that  derived  from  common 
sense ;  that  prevails  as  much  in  inferior  courts,  as  in  the  superior  ; 
as  much  at  the  plough  as  at  the  bar.  If  it  be  a  knowlege  of  the 
mode  of  proceedings,  that  consists  mostly  in  the  knowlege  of 
technicals,  a  difficulty  that  will  be  removed,  by  a  revision  of  the 
system.  But  it  is  now  very  well  understood,  that  the  circuit  court 
is  almost  w  holly  used  for  delay — for  a  prevention  of  justice  by  the 
litigious. 

When  causes  have  been  continued  belowr,  until  they  must  be  tried 
or  removed ;  removal  is  resorted  to,  only  to  produce  new  delay, 
which,  instead  of  ending  knotty  cases,  prevents  the  trial  of  the  niost 
simple,  sometimes  double  the  usual  time ;  and  three  times  out  of 
four,  when  the  litigious  can  delay  no  longer,  they  will,  if  possible, 
avoid  a  trial,  by  a  compromise  of  justice. 

Man  is  the  creature  of  habit,  and  truth  has  the  greatest  difficulty 
to  root  out  error,  or  we  should  never,  under  a  free  government, 
have  so  long  submitted  to  the  evils  of  the  judiciary,  and  rules  of 
law  which  no  two  judges  or  lawyers  know,  or  can  agree  upon.— 
We  should  have  been  guided  by  common  sense  to  the  cause  of 


(  24  ) 


actions  for  a  knowlege  of  them,  and  a  rational  mode  of  termination 
would  have  followed. 

If  we  resort  to  experience,  all  the  actions  which  have  arisen, 
are  from  very  simple  causes ;  mostly  from  angry  men  whose 
passions  darken  their  understandings  from  a  knowlege  of  justice, 
or  from  avaricious  men  who,  unjustly,  covet  the  property  of 
others :  both  could  have  been  ended  fairly,  while  they  were  new 
x  enoVSh  t0  be  understood  by  dispassionate  men  of  common  sense, 
not  interested  on  either  side.  Here  is  the  use  and  benefit  of  arbi¬ 
tration,  the  most  rational  mode  of  settling  disputes  ;  but  it  does  not 
suit  the  interest  of  the  bench  and  bar.  They  wish  to  legalize  every 
valuable  suit,  and  lard  it  with  the  technicals  of  a  few  courts  below, 
and  a  few  courts  above,  and  end  it  to  their  own  advantage.  They 
said)  to  encrease  the  variance  and  intricacy  to  their  profit,  without 
which  they  could  not  be  enriched.  They  speak  loud  about  jury 
trial,  but  are  always  ready  to  dispense  with  the  people’s  services 
tneiein,  vlien  they  can  be  court  and  jury  themselves. 

.  we  bac*  not  followed  too  closelv  the  form  of  the  English  judi¬ 
ciary,  a  much  more  simple  plan  of  courts  and  juries  would  have 
been  devised;  better  adapted  to  our  habits  as  a  free  people,  and 
almost  infinitely  preferable  to  the  one  used  at  present. 

When  we  view  Pennsylvania  as  an  independent  state,  every  part 
connected  with  the  whole  ;  we  see  it  united  principally  for  defence, 
and  presently  discover  all  the  unity  that  is  absolutely  necessary  for 
judicial  purposes;  so  much  in  extent,  as  produces  a  physical 

power,  sufficient  when  aided  by  public  opinion,  to  ensure  internal 
order  under  the  operation  of  law. 

W  hen  a  nation,  or  people,  are  settled  on  an  extensive  soil,  and 
connected  for  their  defence,  utility  soon  points  out  the  necessity  of 
small  divisions.  Scarcely  any  thing,  but  defence,  relative  to  soci¬ 
ety,  requires  much  extent.  Were  the  state  a  plain,  about  thirty 
•mies  square,  is  the  space  which,  if  not  very  populous,  might  be 
conveniently  allotted  for  a  county,  and  about  five  for  a  township  • 
and  this  extent  would  answer  all  the  purposes  for  which  they 

were  originally  designed,  without  inconvenience  or  burthen  to  the 
people. 


Every  county  is  acquainted  with  the  nature  of  its  own  disputes  ; 
and  in  this  enlightened  country,  where  nine  tenths  of  the  people 
can  read  and  write,  and  one  tenth  though  following  the  plough  or 
throwing  the  shuttle,  are  scriveners,  can.  settle  their  own  disputes 
among  themselves  in  the  most  beneficial  manner;  either  by  arbi¬ 
tration  in  its  first  or  second  stage ;  or  in  their  county  court,  with 
the  principle  extended  to  a  reformed  jury  trial,  before  judges 

chosen  from  among  themselves ;  but  further  than  this,  an  action 
ought  never  to  go. 

It  is  absurd  to  suppose  that  a  citizen  of  Northumberland  should 
undei  stand  the  concerns  of  the  people  of  Alleghany  better  than 
themselves,  or  that  a  judge  ol  Berks  could  assist  the  wisdom  of 
I  hiladelphia  in  settling  disputes.  But  all  this  may  be  necessary, 


(  25  ) 


■when  suits  are  carried  from  com!  to  court,  and  continued  from 
year  to  year,  until  they  become  so  intricate  that  even  a  court  of 
lawyers  cannot  comprehend  them. 

A  county  court  composed  of  live  judges,  to  be  chosen  by  the 
people,  to  serve  for  five  years,  going  out  by  rotation,  one  annually, 
and  re-eligible  districts  composed  of  from  three  to  six  counties—* 
superintended  by  presidents  to  be  chosen  for  the  same  time,  either 
by  the  people  at  large  in  the  manner  that  senators  are  now  chosen, 
if  not  too  inconvenient ;  or  to  be  appointed  by  the  executive  and 

approbated  by  the  assembly— - a  triennial  state  court  to  be 

neld  at  the  seat  ol  government  by  the  supreme  judges  and  presi¬ 
dents,  in  order  that  uniformity  might  be  kept  in  view  through  the 
state,  would  answer  ail  the  purposes  with  less  expence,  and  abun¬ 
dantly  less  fatigue  to  the  people,  of  the  supreme — circuit  court— 
qua i ter  sessions,  Sec.  See.  now  in  use  through  the  state.  II  any 
eiioi  or  mistake  appeared,  it  might  be  rectified—  discretion 
might  he  used  as  at  present  to  order  a  new  trial. 

It  will  be^  alledged  that  these  courts  would  not  be  adequate  to  de¬ 
termine  difficult  cases;  that  ignorance  would  operate  injustice. 

Let  it  be  supposed,  (though  it  is  not  admitted)  that  this  would 
sometimes  be  the  case  ;  yet  will  a  few  instances,  of  that  kind,  hap¬ 
pening  rarely  (not  more  frequently  than  at  present)  be  as  great  an 
evil,  us  the  delay  and  expence  which  now  take  place  in  the  most 
trilling  cases,  to  the  prevention  of  justice  and  ruin  of  families  ? 

But  cases  are  not  difficult  in  their  first  stage  ;  we  know  they  are 
not ;  they  are  made  so  for  the  purposes  of  avarice. 

Every  enlightened  man  knows,  that  near  to  himself,  at  his  own 
door,  among  the  many  disputes  he  has  seen  arise,  he  has  never 
known  one,  but  what  could  have  been  fairly  ended  upon  the  prin¬ 
ciples  of  equity,  by  a  few  disinterested  intelligent  men  within  the 
vicinity  of  the  parties,  soon  after  it  had  happened  ;  provitt&d  the  angry 
or  Iraudulant  had  been  obliged  to  submit  before  it  had  been  rendered 
difficult  by  technical  obscurity.  And  when  a  large  proportion  of 
the  suits  were  sifted  away  by  arbitration,  the  courts  proposed  would 
be  competent  to  the  final  ending  of  all  disputes  to  any  amount,  that  it 
•  might  be  thought  proper  to  exempt  from  the  first  tribunal.  Mostly 
at  the  first  court,  but  generally  at  the  second,  the  j  rties  coma  be 
prepared,  if  they  knew  they  must,  with  the  best,  nd  worst  evi¬ 
dence  their  cases  admitted. 

1  he  bench  and  bar  wiii  lift  their  hands  with  affected  surprise 
and  indignation,  on  hearing  a  proposition  for  so  simple  and  speedy 
a  mode,  and  speak  ol  the  consequences  of  precipitancy,  and  want 
of  legality,  without  wishing  to  remember,  that  when  a  man  is 
charged  with  felony  or  murder,  under  the  present  system,  unless 
he  should  have  abundance  of  money,  he  will  be  obliged  to  be  ready 
for  tr(>al  the  first  term,  although  in  some  instances  it  might  be  pos¬ 
sible  to  prove  absence  and  innocence  of  the  crime.  But  if  it  be  a 
contention  about  property — the  value  of  a  horse  or  two  or  three 
cows)  the  action  can  be  delayed  for  years. 

D 


(  26  ) 


\ 


The  present  incorrect  system  is  evidently  calculated  to  oppress 
every  clsss  of  citizens  destitute  of  wealth  and  leisure ;  those  who 
are  possessed  of  both,  may  be  armed  to  meet  its  evils. 

1  here  is  no  necessity  for  the  subsisting  solemn  mockery,  of  the 
mere  form  of  a  jury  trial  about  property,  provided  the  substance  of 
a  candid  trial  be  strictly  attended  to ;  and  the  courts  proposed, 
would-  answer  the  purposes  of  a  technical  court,  which  is  now  sur¬ 
rounded  by  lawyers  quoting  authorities  and  splitting  cases  for  hours, 
to  pre  vent  honest  suitors  from  coming  directly  to  the  point  of  decision. 

But  in  criminal  cases,  for  capital  offences,  where  life  is  at  stake, 
there  is  something  disagreeable  in  a  decision,  which  may  take  a  fellow 
creature  away  from  the  community,  and  send  him  to  eternity.  There 
is  then  something  attached  to  the  office  of  judge,  that  should  not 
be  called  odious,  but  it  is  disagreeable  to  such  an  extent,  that  it 
would  be  better,  that  the  officer  who  unfolds  such  a  scene,  should 
reside  at  a  distance  from  the  kindred,  the  friends,  the  associates  of 
the  amputated  member  of  the  gloomy  circle. 

I  he  form  of  the  trial  could  not  be  too  simple ;  but  without  un¬ 
necessary  delay,  it  should  be  slow  and  solemn ;  evidencing  that  the 
laws  in  a  democracy  have  the  greatest  regard  for  the  life  of  man  ; 
for  tne  life  of  its  citizens,  1  or  it  has  become  a  question  among  wise 
and  good  men,  as  well  Christians  as  other  philosophers,  “  Whether 
a  community  having  a  refractory  member,  a  heinous  offender 
against  the  laws  of  order  and  morality  in  custody,  within  their 
power,  have  a  right  to  take  his  life  away  for  offences ;  if  without 
the  infliction  of  such  punishment,  they  could  render  him  safe  and 
useful  by  labour:”  Or  in  other  words,  “whether  the  community 
have  a  right  to  put  any  man  to  death  in  cold  blood,  when  it  would 
be  dastardly  cruel  and  criminal,  for  the  soldier  to  do  it  in  the  field 
of  battle  after  his  enemy  is  vanquished  ?” 

Althougl^io  odium  should  attach  to  the  office  of  judge,  while 
the  laws  of  the  commonwealth  punish  with  death,  yet  if  the  doubt 
of  its  propriety  betome  prevalent,  an  alteration  will*  take  place,  and 
however  worthy,  mild,  and  amiable  may  have  been  the  disposition 
of  the  court  in  the  operation  of  sanguinary  laws,  the  solemn  scenes 
of  execution,  will  never  cease  presenting  themselves  to  the  minds 
of  the  vicinity  during  the  present  age  ;  and  the  judge  will  continue  a 
perpetual  abhorrence  to  the  connections  of  the  wretched  sufferer, 
and  an  object  disagreeable  to  thousands  of  prudent  men. 

I  he  utility  of  executions  on  offenders,  or  to  the  offended  com¬ 
munity,  and  their  etrects  are  delicate  questions,  that  must  coolly 
ripen  ;  and  although  it  would  be  right  to  take  a  robber  or  murderer, 
or  disturber  of  the  public  peace  dead  or  alive,'  that  would  not  yield 
to  be  tried  by  the  laws,  for  crimes  alledged  ;  yet  so  soon  as  he  should 
-  t>e  safely  in  custody,  would  it  not  be  better  to  be  at  the  expence  of 
his  subsistance,  than  to  see  his  life  taken  away  for  the  offence  ? 

If  the  community  could  be  safe  from  his  evil  disposition,  if  repa¬ 
ration  could  be  made  for  the  offence,  would  not  the  conscience  of 
every  individual  concerned,  feel  perfectly  at  ease,  in  avoiding  a  use* 


(  27  ) 


less  sacrifice,  by  leaving  the  life  of  the  offender  in  the  hands  of  its 
omnipotent  creator,  to  be  required  at  his  pleasure. 


ESSAY  VI. 

ON  THE  PERNICIOUS  INFLUENCE  OF  VARIOUS  POWERS  IN  THE 

EXECUTIVE. 

IN  Pennsylvania,  the  governor  or  executive  officer,  has  a  nega¬ 
tive  on  the  passage  of  laws,  almost  equal  to  two  thirds  of  both 
branches  of  the  legislature.  This  legislative  negative  has  always 
been  useless,  sometimes  worse,  and  might  at  critical  periods  be 
injurious  to  the  state. 

But  he  has  other  powers  which  are  extremely  pernicious  under 
the  best  governors;  that  is,  the  absolute  power  of  filling  offices, 
where  in  many  instances  it  is  impossible  for  him  to  know  the  men. 

His  information  may  be  through  corrupt  or  selfish  channels ; 
sometimes  from  men  who  wish  to  have  their  friends  appointed. 

Under  a  corrupt  governor  it  will  still  be  worse  ;  every  son,  every 
kinsman,  his  favorites  and  theirs,  whether  capable  or  not ;  with  or 
without  the  public  confidence,  will  be  brought  from  obscurity  ;  even 

from  other  states - not  by  the  people — and  placed  over  the 

people,  to  bask  in  the  sunshine  of  royal  patronage  ;  and  those  ex¬ 
cluded  in  whom  the  people,  have  every  reasonable  confidence. 

Our  government  is  a  democracy  ;  it  is  founded  on  public  opinion  ; 
and  whether  good  or  defective,  rises  out  of  the  people  ;  the  system 
therefore  should  have  been  so  framed  as  that  no  door  could  be 
open  to  such  abuses. 

The  constitution  ought  to  have  been  such,  that  when  evils  arise, 
the  people  at  certain  periods  by  election  or  otherwise,  should  be 
able  constitutionally  to  check  them. 

But  the  evils  of  absolute  appointments  without  limitation  of  time, 
have  no  check,  they  are  both  the  origin  and  result  of  despotism : 
they  arise  from  power  in  the  first  and  second  instance,  perniciously 
placed,  and  are  the  source  of  permanent  evil. 

The  governor  is  the  legitimate  organ  of  the  government ;  the 
head  or  the  executive;  as  soon  therefore  as  the  people  legitimately 
say  a  man  should  receive  any  important  appointment  or  office, 
there  would  be  no  evil  in  directing  the  executive  to  commission 
him  ;  thereby  expressing  the  public  will.  But  in  no  instance  should 
he  have  absolute  power  to  appoint  to  office  except  immediately 
under  himself,  where  from  the  nature  of  the  duties  to  be  performed, 
the  officers  were  directly  to  be  accountable  to  him  as  the  head  ot 
the  executive  department :  where  he  would' be  acquainted  with  their 
qualifications  and  faithfulness,  and  immediately  answerable  for  their 
conduct  to  the  people. 


I 


(  23  )  * 

So  many  offices  being  in  the  gift  of  the  executive ;  in  the  gift  of 
any  one  man,  however  good  he  might  be ;  however  virtuous  the 
minus  ot  the  applicants  would  consequently  consumb  too  great 
a  portion  of  that  time,  which  could  be  more  rationally  and  usefully 
employed  in  seeing  that  the  laws  were  faithfully  executed  through 
t  ic  state  ;  and  that  speculations  were  prevented  near  the  Govern¬ 
But  if  he  were  bad,  and  it  were  possible  more  to  corrupt  him, 
die  present  powers  and  duties  throw  so  much  adulation  at  his  feet  * 
so  many  sycophants  as  well  as  honest  citizens  within  his  vision! 
that  it  is  morally  impossible,  that  the  man  to  whom  thousands  bow, 
snouicl  not  daily  and  hourly  become  worse,  until  in  the  midst  of 
slavish  minds,  he  shouicl  be  worshipped  into  forgetfulness  of  law, 
the  rights  ol  the  people,  and  of  a  correct  knowlege  of  himself. 
In  tins  despotic  power,  or  triennial  despotism  given  to  the  Gover¬ 
nor,  the  convention  turned  their  eyes  again  to  Britain.  They  mis- 
took  the  executive  for  the  fountain  of  honor,  and  supposed  as  the 
Bi  itish  suppose  of  their  king — that  a  governor  could  do  no  nvroncc  - 
when  within  a  democracy,  he  is  the  mere  emanation  of  sovereign¬ 
ly  a  reflection  of  power  from  the  people,  and  as  accountable  to 
officer  a  penodlCal  resilmPtion  of  their  power,  as  any  other 

1  he  governor’s  election  or  appointment  is  entirely  popular,  it  is 
democratic;  but  his  powers  are  aristocratic,  without  any  check 
but  a  wide  spread  distant  and  ideal  responsibility :  his  functions 
are  absolutely  despotic.  T he  appointments  are  too  numerous  to 
come  from  any  one  department,  they  should  be  divided. 

1  he  governor  is  ignorant  three  times  out  of  four,  of  the  qualifi¬ 
cations  oi  the  men  whom  he  appoints  to  office.  He  mav  some¬ 
times  do  wrong  knowingly ;  but  he  must  at  other  times  do  wrong 
necessanly,  from  the  defect  of  the  system,  investing  him  with  the 
absolute  power  of  appomtment  of  hundreds  of  men  to  office,  with 
whom  he  never  can  have  been  acquainted.  Here  then  is  a  greater 
cvfl  than  would  result  from  elections;  for  at  least  those  in  a  man’s 
neighbourhood  con  d  judge  of  his  character  and  qualifications. 

Under  a  fase  ldea  Polltlcal  perfection,  the  convention  gave 
the  executive  unnatural,  and  in  respect  to  appointments  unlimited 
power ;  but  they  became  alarmed  with  the  idol  they  had  set  up— 
with  their  own  idol— no  wonder— and  directly  said,  he  shall  in  no 
instance,  exerdse  this  power  longer  than  nine  years  in  succession, 
though  the  people  wish  it.  W  hat  an  absurdity  !  The  convention 
would  neither  trust  their  own  idol,  nor  the  wisdom  of  the  people. 
What  a  sad  situation!  Had  they  only  given  him  useful  power  and 
no  more  than  one  man  could  exercise  consistently  with  the  public 

safe  y,  they  w  ould  not  have  feared  the  despot,  nor  tied  the  hands 
ol  the  people. 

.  Undel'.the  Present  system>  a  governor  once  elected,  is  probably 
m  every  instance  so  powerfully  entrenched  in  office  behind  nis  own 
creatures,  many  removeable  at  will,  as  to  continue  nine  years ;  and 


(  2*  ) 

the  idea  of  his  triennial  election,  or  impeachment  for  misdemeanor 
in  office,  practically  delusive  and  ridiculous. 

He  that  holds  the  breath  of  so  many  officers,  let  him  be  a  good 
or  evil  governor,  is  likely,  in  every  instance  to  be  continued  for 
nine  years.  Nay,  drunkenness,  dissipation,  insolence  or  tyranny, 
will  scarcely  prevent  him.  He  should  have  such  moderate  powers 
so  limited  as  to  have  left  him  less  dangerous,  or  under  the  present 
system  made  eligible  to  office,  after  his  first  triennial  period,  at 
least  for  nine  years.  Thus  with  the  greater  tyrants,  the  people 
would  have  had  the  smaller  ones  removed  that  were  insolent  or 
evil,  every  third  year,  and  prevented  the  executive  growth  of  ab¬ 
solute  power,  by  a  rapid  change  of  rulers. 

This  power  thus  placed  in  a  governor,  is  necessarily  pernicious, 
because  he  is  bound  to  perform  duties  which  he  cannot  understand, 
and  he  appoints  men  of  whom  he  can  have  no  opportunity  of  know- 
lege.  He  returns  to  private  life,  but  leaves  many  of  his  creatures 
in  the  judiciary,  lasting  monuments  of  the  imperfection  of  our  po¬ 
litical  institutions.  Without  evil  intention  he  might  have  men  in 
power,  in  office,  able  to  walk  the  serpentine  pat  between  law  and 
justice,  exercising  petty  tyranny  during  life,  without  coming  with¬ 
in  reach  of  detection  so  as  to  produce  a  removal. 


ESSAY  VII. 

OF  THE  DANGEROUS  POWER  OF  THE  EXECUTIVE  OVER  THE  PUBLIC 

PURSE. 

IN  a  democracy  the  executive  should  have  as  little  influence 
over  the  treasury,  as  is  consistent  with  his  general  powers  of  seeing 
the  laws  faithfully  executed ;  for  fear  it  should  become,  in  his 
hands,  an  engine  of  corruption,  and  under  colour  of  facilitating  the 
execution  of  the  laws,  be  indirectly  used  to  debase  and  corrupt  the 
people. 

The  purse  of  the  people,  in  the  hands  of  their  officers,  should  be 
used  as  carefully  as  the  blood  of  a  patient  by  a  prudent  pnysician. 
l'or,  although  it  is  not  the  soul  of  democracy,  yet,  if  it  be  drawn 
improperly,  and  lavished  away  on  a  set  of  unprincipled  intriguers, 
under  colour  of  law,  it  will  have  a  strpng  tendency  to  injure  the 
body  politic ;  and  by  weakening  public  confidence  in  democratic 
institutions,  eventually  destroy  the  very  vitals  of  our  political 
existence. 

The  treasury  ought  to  be  kept  as  near  to  the  people  as  is  con¬ 
sistent  with  their  scattered  situation  ;  hence,  by  a  wise  constitutional 
regulation,  although  not  sufficiently  extensive,  the  state  treasurer 
is  elected  annually,  by  a  joint  vole  of  the  members  of  both  houses. 
Tl  his  integrity  be  doubted,  although  there  be  no  proof  of  embezzler 


ment  of  the  public  money,  he  can  be  left  out  of  office  the  year 
following,  without  the  expence  of  an  impeachment. 

Formerly  the  treasurer  was  possessed  of  the  power,  in  part,  of 
an  accountant  officer.  To  this  power,  as  well  as  the  safe  keeping 
of  the  money,  undoubtedly  the  convention  turned  their  attention 
when  his  election  was  instituted ;  but  that  power  is  now  chiefly 
vested  in  the  register  and  comptroller,  where  no  doubt  it  would 
be  as  safe,  were  the  same  check,  annual  election  extended.  But 
instead  of  that,  they  are  appointed  by  the  executive  under  law 
during  pleasure ;  and  not  accountable  to  the  people  through  the 
annual  representatives,  as  the  convention  seem  to  have  intended  the 
officer  holding  the  purse  of  the  state  should  always  be. 

The  governor’s  constitutional  power  over  the  treasury,  is  only  to 
see  the  laws  faithfully  executed ;  but  under  the  laws  now  in  force, 
when  a  difference  of  opinion  arises  between  the  register  and  the 
comptroller,  on  the  settlement  of  accounts,  which  is  either  with¬ 
holding  or  drawing  money  from  the  treasury,  the  governor  is  to  be 
the  umpire  and  shall  decide. 

As  these  officers  are  appointed  by  him  and  removable  at  plea¬ 
sure,  he  has  from  their  dependence  an  improper  influence  over 
them,  when  they  are  passing  particular  accounts ;  for  there  are  but 
few  men  who  accept  offices,  that  would  persevere  in  saving  money 
to  the  state,  at  the  risk  of  losing  comfortable  livings. 

Indeed  this  risk,  this  very  idea  of  doing  their  duty,  should  con¬ 
vince  every  mind,  that  the  system  which  puts  virtue  to  such  a  test 
in  a  democVacy  is  defective.  For  instead  of  a  temptation  to  do 
wrong,  every  officer  from  a  correct  distribution  of  powers,  should 
have  the  greatest  inducement  to  do  right.  This  would  be  effected, 
were  their  appointments  to  be  approbated  and  sustained,  by  a  large 
body  to  be  delegated  immediately  from  the  people  ;  and  where  as 
has  heretofore  been  shewn,  from  the  number  of  members,  while  the 
majority  of  the  people  remained  virtuous,  there  would  be  but  very 
little  chance  of  favoritism ;  or  any  probability  that  improper  influ¬ 
ence  over  the  minds  of  these  officers  would  take  place. 

It  is  true  that  the  constitution  declares,  that  no  money  shall  be 
drawn  from  the  treasury,  but  in  consequence  of  appropriations 
made  by  law ;  yet  as  there  will  be  vague  expressions  in  the  laws 
themselves,  it  may  at  times  be  difficult  to  know  what  species  of 
accounts  the  legislature  intended  should  be  paid.  This  gives  a 
latitude,  a  discretion  which  the  accountant  officers  may  fairly  use 
to  the  benefit  of  the  state,  or  if  they  want  integrity,  sadly  abuse 
for  the  benefit  of  individuals. 

The  governor  having  these  men  in  his  fingers,  should  he  be  sel¬ 
fish,  should  one  man  be  evil,  will  be  likely  to  have  all  accounts 
passed  and  paid,  to  which  his  interest,  or  the  interest  of  his  friends 
or  dependants  under  any  connection,  has  the  most  remote  relation ; 
under  some  law,  or  the  construction  of  law. 

The  expression  in  the  constitution  is  defective  ;  it  only  secures 
the  annual  election  of  the  treasurer,  without  explicitly  securing  the 
election,  or  approbation  by  the  assembly  of  the  officers  in  the  trea- 


(  31  ) 


sury  department  ;  without  securing  the  election  or  approbation  of 
all  the  principal  men,  who  either  handle  or  draw  money  from  the 
treasury  ;  or  admit  and  settle  accounts  having  that  tendency. 

From  the  revolutionary  war  down  to  1792,  when  the  in¬ 
trigues  of  the  few  were  creating  patronage  ;  when  the  few  and 
their  friends  were  making  hasty  strides  to  all  the  posts  of  profit  and 
honour,  in  a  way  more  congenial  with  their  wishes,  than  through 
the  confidence  of  the  people  ;  then  not  even  the  skeleton,  nothing 
but  the  shadow  of  a  shade ,  the  name  of  a  treasurer  was  left  in  the 
hands  of  the  people’s  nearest  representatives  ;  and  the  sole  discretion 
of  the  treasury  committed  to  the  safekeeping  of  the  executive. 

Two  of  the  governor’s  creatures,  however  good  or  bad  the  men, 
whether  known  or  unknown  to  the  people,  now  settle  all  accounts, 
and  he  by  his  warrants  dyaws  the  money,  without  any  check,  but 
through  these  very  men,  who  know  they  can  be  removed  the  mo¬ 
ment  they  give  their  patron  offence. 

It  can  be  no  question  whether  the  governor  be  wise  and  virtu¬ 
ous  enough  safely  to  be  trusted  with  the  appointment  of  the  officers 
who  are  to  open  and  shut  the  public  purse  at  pleasure  ;  nor  whe¬ 
ther  treasury  powers,  as  to  receipts  and  payments  should  on  any 
occasion,  be  put  into  the  hands  of  the  executive  ;  the  question  has 
been  settled  by  the  convention,  and  the  principle  fixed  in  the  con¬ 
stitution.  And  although  the  words  are  not  so  explicit  as  they 
ought  to  have  been,  yet  their  spirit  is  evident.  For  as  the  head  of 
the  treasury  department  is  to  be  annually  chosen  by  the  legislature, 
and  other  officers  in  the  same  department  to  be  appointed  as  may  be 
directed  by  law,  it  cannot  be  understood,  that  a  law  could  be  con¬ 
stitutional,  that  would  derive  those  subordinate  officers  from  ano¬ 
ther  source,  and  give  them  powers  superior  to  the  treasurer.  It 
must  be  a  violation  of  the  constitutional  principle  to  vary  the  pow¬ 
er  of  withholding  or  paying  safely,  from  the  officer  so  carefully 
named  in  the  instrument,  and  so  solemnly  elected  by  the  votes  of 
the  whole  legislature. 

Every  law  that  either  negatively  or  positively,  gives  that  respon¬ 
sibility  to  executive  officers,  and  takes  away  the  money  check 
from  the  officer  of  the  legislature,  named  in  the  constitution,  under 
any  idea  or  notion,  is  absolutely  unconstitutional. 

The  executive  is  clothed  with  many  powers  by  the  constitution, 
but  this  is  reserved  ;  and  designedly  reserved  to  prevent  him  from 
having  the  opportunity  of  using  the  purse  of  the  people,  if  he  be¬ 
came  corrupt,  in  aid  of  his  other  power,  for  the  purposes  of  sub¬ 
verting  the  principles  of  liberty. 

If  the  convention  intended  any  thing,  they  intended  to  keep  the 
purse  from  the  executive ;  and  by  the  words  in  the  constitution, 
which  say  that  “  all  other  officers  in  the  treasury  department  shall 
be  appointed  in  such  manner  as  is  or  shall  be  directed  by  law,” 
mean,  that  the  legislature  might  chuse,  whether  these  officers 
should  also  be  elected  by  the  members ;  or  consider  the  responsi¬ 
bility  of  the  annually  elected  treasurer  sufficient  to  ensure  fidelity 


(  32  ) 


throughout  the  department,  when  the  whole  were  derived  from 
him  as  their  head,  he  from  the  numbers,  and  they  directly  from 
people  in  too  laige  a  body,  hastily  to  admit  of  corruption. 

On  the  death  of  the  state  treasurer,  there  is  no  provision  in  the 
constitution,  to  continue  the  duties  of  the  office  until  the  ensuing 
year,  neither  has  any  hitherto  been  made  by  law  upon  the  subject : 
hence  on  the  death  of  two  treasurers,  one  in  the  recess  of  the  le¬ 
gislature,  and  the  other  during  their  sitting,  the  state  was  partially 
paralized.  In  the  former  case,  the  transaction  of  the  business  by 
tne  clerk  without  law,  was  indirectly  approbated  until  the  legisla- 
tme  convened  ;  and  in  the  latter  case,  a  special  law  passed  for  the 
election  of  another,  while  the  business  of  the  state  was  at  a  stand. 

These  two  instances  plainly  point  out  the  necessity  of  a  iaw, 
making  such  provision,  that  the  business  should  meet  no  impedi¬ 
ment  on  the  death  of  the  officer. 


Idle  legislature  have  long  since  provided,  that  there  should  be 
a  deputy  secretary  of  state,  although  entirely  useless  and  unne¬ 
cessary  ;  for  on  the  death  of  the  secretary,  the  executive  could  ap¬ 
point  another  and  no  evil  arise ;  yet  they  have  neglected  to  direct 
the  appointment  of  a  deputy  treasurer,  when  it  would  he  absolute¬ 
ly  useful  on  the  death  ol  a  treasurer  ;  tne  executive  having  no  pow¬ 
er  to  touch  the  office,  nor  appoint  another ;  and  where  there 
should  always  be  such  an  officer  appointed  by  the  treasurer,  and 
approbated  by  the  legislature.  He  should  be  the  responsible  offi 
cer  in  case  of  the  treasurer’s  death,  and  without  distraction  conti¬ 
nue  the  business  of  the  state,  in  the  treasury  office  until  a  succeed¬ 
ing  election. 


ESSAY  VIII. 

ffHE  SYSTEM  OF  THE  treasury  nugatory,  and  destructive  of 

its  intention. 

• 

VARIOUS  have  been  the  modes  hitherto  adopted,  to  render  the 
money  of  the  state  safe  in  the  hands  of  the  treasurer,  and  prevent 
him  from  embezzling  it.  They  have  all  failed,  and  the  evidence 
of  sundry  facts  incontestibly  proves,  that  from  the  earliest  periods 
to  the  present  day,  the  most  effectual  guard  has  been  the  virtue  of 
the  treasurer ;  and  when  this  has  failed,  the  money  of  the  state 
has  been  wasted. 

Under  the  present  treasury  system,  the  surplus  money  must  be 
deposited  in  bank  ;  the  bank  book  therefore  at  settlement  will  exhi¬ 
bit  the  balance  nearly  of  the  money  in  the  treasury. 

1  he  official  check  upon  the  treasurer,  is  his  exhibiting  to  the 
register  general  a  monthly  report,  containing  the  balance  at  the  end 
of  the  preceding  month,  the  receipts  and  payments  during  the  pre¬ 
sent,  and  the  balance  remaining  at  the  end.  This,  although  a  ve- 


(  "33  )  ' 


ry  imperfect  check,  may  be  of  some  use  to  deter  timorous  knaves 
but  cannot  prevent  capital  mischief,  nor  check  even  slight  errors. 

For  as  but  one  receipt  in  many  instances  is  given  for  cash  re¬ 
ceived,  and  that  sometimes  carried  to  a  remote  part  of  the  state,  it 
follows,  that  no  public  notice  of  some  payments  is  given,  but  by 
the  treasurer  himself,  or  payor  when  he  comes  to  make  a  final 
settlement,  which  may  be  several  years  afterwards. 

The  act  of  1803  enables  the  accountants  to  inspect  the  treasu¬ 
rer’s  account  with  the  bank  of  Pennsylvania  and  its  branches  ;  and 
the  act  of  1804  to  investigate  the  office  and  chest;  and  had  the 
state  no  interest  in  the  Philadelphia  bank,  the  information  derived 
from  these  sources,  would  furnish  evidence,  that  the  money  was 
safe,  or  that  it  was  not,  but  could  never  prevent  any  misapplicati¬ 
on  ;  and  is  better  adapted  as  security  to  the  character  of  an  honest 
treasurer,  who  may  be  unjustly  calumniated,  than  to  the  purse  of 
the  people  in  the  hands  of  a  man  who  is  corrupt  and  dares  to  de¬ 
fraud.  In  fact,  the  two  last  provisions  seem  unfortunately  to  form 
a  back  door,  by  which  an  artful  and  designing  treasurer  may  legal¬ 
ly  discharge  his  sureties,  and  make  himself  alone  responsible  for 
designed  delinquencies. 

For  it  has  been  decided  in  the  supreme  court  against  the  state, 
that  the  treasurer’s  sureties  being  bound  for  one  year  only,  are 
not  answerable  for  money  that  is  wasted  after  its  expiration  ;  hence 
if  after  a  re-eledtion,  and  before  security  be  entered,  the  treasury 
be  investigated,  and  evidence  given  of  the  safety  of  the  money, 
the  former  sureties  are  discharged,  all  the  money  of  the  state  is  in 
the  power  of  the  treasurer,  and  he  alone  responsible. 

However  plausible  those  checks  may  have  appeared,  when  insti¬ 
tuted,  such  might  be  their  operation  ;  and  the  treasurer  after  his  re- 
election,  and  while  the  legislature  was  sitting,  might  artfully  delay 
giving  security,  draw  out  all  the  money  from  the  banks,  under  the 
plausible  pretext  of  paying  the  expence  of  the  session  (which  no  ac¬ 
countant  could  prevent)  then  privately  and  hastily  spread  his  drafts 
(payable  at  the  bank)  over  the  state,  and  receive  value  from  persons 
ignorant  of  the  fraud  [the  state  would  have  to  pay  them]  and  design¬ 
edly  become  insolvent,  bringing  loss  and  confusion  on  the  state. 

The  accountant  officers,  in  such  cases,  could  do  no  more ;  they 
never  have  done  more ,  than  give  information  of  delinquencies  after 
they  happened,  recollect  the  money,  or  state  the  improbability  of 
its  recovery. 

But  if  on  the  contrary,  the  accountants  themselves  were  to  be¬ 
come  so  corrupt,  as  boldly  to  advocate  the  right  of  the  treasurer, 
after  entering  security,  “  to  make  what  use  he  pleased  of  the  pub¬ 
lic  money  while  it  was  in  his  power,  provided  it  was  ready  when 
called  for;”  could  it  be  understood  to  mean  any  thing  else,  but  an 
invitation  to  enter  the  current  of  speculation,  whereby  he  might 
be  sacrificed  to  their  avarice ;  and  instead  of  their  being  a  guard 
to  the  interest  of  the  people,  betray  the  cause  that  virtue  and  duty 
would  bid  them  support. 


F. 


(  34  ) 


But  now  let  us  pause,  and  view  the  provisions  of  1803  and  1804, 
in  respect  to  the  investigation  of  the  treasury,  by  two  of  the  go¬ 
vernor’s  creatures.  The  governor  before  that  period,  was  really 
the  treasury,  and  drew  what  money  he  pleased  from  the  treasu¬ 
ry  ;  but  since,  even  the  idea  of  holding  the  money  for  others  safe¬ 
ly  by  the  treasurer  is  totally  taken  away  ;  no  dependence,  not  even 
of  honesty  without  wisdom,  to  be  placed  in  the  officer  of  the  as¬ 
sembly  ;  the  incompetency  of  the  legislature  to  make  a  prudent 
choice  acknowleged,  and  the  infallibility  of  the  executive  admitted. 

The  first  law  directs  the  investigation  of  the  bank  books,  the 
second  obliges  the  treasurer  to  open  the  chest,  and  have  the  money 
counted,  for  fear  he  should  do  without  law,  what  others  can  do 
under  it — waste  the  money.  How  excellent,  disinterested,  and  pure 
are  the  governor’s  officers !  How  suspicious  even  to  the  members, 
the  treasurer  just  chosen  by  themselves ! 

This  operation  being  contrary  to  common  sense,  evidences  an 
exterior  influence.  That  is  the  assembly  vote  as  if  they  believed 
(what  the  mind  continually  repels)  that  they  were  incapable  of 
choosing  one  man  from  the  whole  state  fit  to  be  trusted.  And 
then  follows  the  consequence,  that  the  governor  must  take  care  of 
him,  and  of  the  treasury  until  the  subsequent  year. 

In  the  assembly,  as  well  as  in  every  other  place,  some  of  the 
members  who  have  weak  minds  and  but  little  dqficacy,  have  more 
assurance  and  fluency  of  speech,  than  some  others  who  possess  sound 
judgment  and  clear  heads.  Such  are  more  active  than  prudent,  in 
bringing  forward  business,  by  which  from  a  certain  quarter  they 
obtain  celebrity  This  gives  then,  consequence.  Their  talents  are 
extolled,  their  vanity  flattered,  and  they  are  made  to  believe,  they 
possess  all  the  wisdom  of  the  body— .that  were  it  not  for  them,  ig¬ 
norance  would  ruin  the  state. 

Attemp ts  are  not  Avanting  to  inculcate  the  false  idea,  “  That  in  large 
bodi  s,  the  responsibility  is  so  divided  that  it  is  lost,  and  the  mem¬ 
bers  care  not  what  they  do ;  that  the  executive  is  single  and  alone 
responsible,  therefore  careful.  That  under  such  circumstances, 
while  the  wiser  few,  have  it  in  their  power,  it  is  better  to  have  just 
principles  fixed  by  law,  which  cannot  easily  be  repealed ;  let  the 
executive  have  full  power,  he  will  do  right ;  it  is  uncertain  who 
will  be  in  the  legislature  hereafter,  and  now  is  the  time  to  effect 
these  objects.”  Should  improper  attempts  be  made  under  such 
ideas,  and  virtue  in  the  popular  body  repel  the  insult,  the  hint  is 
improved,  all  the  members  but  the  few  are  blockheads,  without 
common  sense,  unfit  to  be  trusted. 

Here  are  instantly  tAvo  parties.  Call  them  what  you  please,  you 
neither  alter  their  nature  nor  pursuits.  Tory  and  whig ,  federal  and 
anti  federal,  aristocratic  and  democratic ,  court  and  country — their 
objects  are  always  different.  The  one  believes  in  executive  infalli¬ 
bility,  and  evidences  a  pleasure  in  hearing,  and  sometimes  in  giv¬ 
ing  the  legislature  abuse,  l  he  other,  votes  to  lessen  executive 
power,  believing  that  the  spread  of  the  members  over  the  whole 


(  35  ) 

state,  brings  a  knowlege  of  the  wants  and  wishes  of  the  people 
effectually  to  one  point 

Perhaps  the  two  parties  should  now  be  denominated  the  executive 
and  legislative  parties,  or  prerogative  and  popular ;  for  one  gives 
all  power  to  the  governor,  the  other  would  rather  trust  a  numerous 
body,  which  from  its  very  number,  cannot  so  easily  be  interested 
in  error. 

Formerly,  when  the  treasurer  was  elected,  the  assembly  took  the 
security  ;  but  they  are  not  now  believed  to  be  capable  of  judging  of 
security  !  The  governor  must  do  it  for  them,  and  thereby,  has  it  in 
his  power  to  embarrass  the  treasurer  elect  by  refusing  good  men. 

But  more  than  this  is  in  his  power  under  the  present  constitution. 
If  business  of  a  certain  kind,  is  to  be  done  in  a  certain  way,  that 
needs  but  little  explanation,  the  treasurer  perhaps  can  be  made  a 
creature.  He  may  be  adjutant  general,  an  office  in  the  gift  of  the 
executive  worth  six  or  eight  hundred  dollars  a  year.  He  may  be 
made  a  clerk  of  a  court,  or  even  a  justice  ol  the  peace,  as  well  as  a 
treasurer;  or  he  may  receive  any  other  office  in  the  gift  ol  the 
executive  that  would  have  a  tendency  to  produce  a  disposition  of 
accommodation. 

The  principal  risk  the  state  now  runs  of  money  being  lost,  after 
receiving  it  into  the  treasury,  is  on  account  ol  the  possibility  of  the 
banks  or  treasurer  failing  ;  when  either  could  be  made  the  sole  place 
of  deposit,  and  two  risks  reduced  to  one. 

No  money  has  hitherto  been  lost  through  the  errors  or  misappli¬ 
cation  of  the  banks  ;  the  institutions  are  answerable  for  the  embezzle¬ 
ment  or  errors  of  individuals :  but  large  sums  have  been  lost  or 
embezzled  through  the  neglect  of  the  state,  by  the  treasurers  and 
comptroller  ;  the  banks  are  therefore,  certainly  the  safest  place  of 
deposit  for  public  money,  into  which,  in  the  first  instance  it  should 
always  be  paid,  and  so  secured  by  law,  as  not  to  be  liable  to  be  gi  awn 
by  the  treasurer,  except  in  the  payment  of  legal  demands  on  the 
state ;  settled  by  the  register,  and  checked  by  himself. 

Were  such  a  mode  adopted,  it  would  lessen  both  the  risk  of  the 
state  and  of  the  treasurer  ;  and  he  as  an  honest  man,  would  be  bettei 
satisfied.  Not  needing  to  use,  nor  intending  to  abuse  power,  he  would 
not  wish  to  possess  it. 

A  check  to  the  bank  could  be  instituted,  by  giving  two  tickets 
or  receipts  for  each  sum  received  ;  with  directions,  one  to  be  depo¬ 
sited  directly  or  indirectly  with  the  treasurer,  and  the  other  for  the 
use  of  the  person  paying  money  to  the  state. 

The  treasurer  being  thus  relieved  from  immediately  holding  and 
paying  the  money,  might  be  more  usefully  employed,  in  acting  the 
part  of  a  comptroller  of  accounts  to  the  register,  and  render  the 
present  comptroller’s  office  useless. 

On  the  settlement  of  an  account,  the  treasurer  should  have  the 
power  of  checking  abuses,  and  errors  ;  and  where  any  impropriety 
appeared,  as  an  officer  responsible  to  the  people  through  the  legi- 


» 


% 


(  36  ) 


slature,  stop  the  payment  of  the  money  until  a  re-examination  and 
proper  adjustment  took  place. 

Instead  of  the  governor  being  treasurer,  and  signing  blank  war- 
rants  to  be  filled  witn  any  sum  at  the  pleasure  of  two  of  his  crea¬ 
tures,  and  paid  over  the.  head  of  the  legislative  check,  the  treasurer, 
vilhout  handling  a  cent  should  pay  the  claim,  at  bank,  after  set¬ 
tlement  by  the  register.  He  would  then  be  responsible  to  the 
members  for  its. propriety  or  impropriety  at  the  annual  election. 

I  he  constitution,  though  defective  in  many  of  its  parts,  would 

i  1,1  ,  i  .  ^  .  t  e  treasury  system  ;  for 

doubtless  the  intention  was  to  keep  the  money  in  the  power  of  the 

assembly ;  but  the  treasurer  is  now  become  no  more  than  a  nose 
of  wax,  liable  to  be  twisted  whether  he  will  or  not,  to  suit  the  pur¬ 
poses  of  corruption,  and  to  the  prejudice  of  the  state. 

The  people  must  judge  by  the  payments  heretofore  made,  whe¬ 
ther  this  power  has  ever  been  abused.  The  design  here  is  only  to 
shew,  that  such  is  the  tendency  of  the  present  system  ;  that  it  can 
be  abused,  almost  with  impunity  ;  and  that  under  this  constitution, 
it  couid  and  should  be  amended,  so  as  to  make  the  treasurer’s  elec¬ 
tion  ot  some  use  to  the  people,  and  to  answer  the  end  of  its  insti¬ 
tution. 


Money  should  be  drawn  in  no  other  way  from  the  ba^ks  th™ 
by  the  treasurer’s  draft,  or  warrant  attached  ,o  and  co~ndh^ 
witn  the  register’s  authenticated  report  of  a  specific  debt,  admitted 
and  settled  to  be  due  from  the  state.  The  treasurer  as  usual,  should 
give  the  legislature  an  annual  account  of  receipts  and  payments 
and  the  banks*should  deliver  them  an  abstract  also  from  their  state 
account,  in  form  of  a  bank  book  or  short  ledger,  shewing  the  mo¬ 
ney  received  and  paid,  and  the  balance  in  the  bank  at  the  end  of 
the  year. 

If  these  documents  corresponded  with  the  register’s  report,  thev 
would  form  evidence  of  the  safety  of  the  money,  and  the  treasurer 
not  being  permitted  to  receive  money,  nor  make  payments  in  any 
other  way,  no  embezzlement  could  take  place,  except  bv  collusi¬ 
on  of  the  banks  ;  which  from  the  vigilance  of  the  directors  of  those 
institutions,  is  never  likely  to  take  place. 


ESSAY  IX. 


OF  CHECKS  AND  BALANCES  IN  THE  LAND  DEPART’MENT’, 

IT  is  not  difficult  to  know  the  difference  between  men  and  mea¬ 
sures  ;  nor  to  learn  that  the  detail  and  operation  of  our  system,  is  as 
imperfect  as  the  constitution  out  of  which  it  arises. 

Among  the  minor  defects,  none  present  themselves  more  strong¬ 
ly,  than  the  arrangements  made  in  the  land  department ;  nor  do 
an>  pioduce  more  complaints  from  those  who  have  the  fatigue  and 
perplexity  of  doing  their  business  therein. 


(  37  ) 


The  governor  in  the  plenitude  of  his  power  is  at  the  head  of  the 

department,  and  all  grants  of  land  made  to  the  citizens  are  in - 

his  name.  Every  man  who  obtains  a  patent  must  do  it  by  trotting 
to  the  four  land  offices  ;  and  probably  in  order  that  something  very 
mysterious — very  profound,  may  appear  to  the  farmer  in  the  trans¬ 
action  of  public  business,  he  is  made  to  perform  a  second  tour,  to 
the  same  offices,  with  a  ticket  in  his  hand,  which  he  has  not  leisure 
to  investigate  ;  and  thus  to  obtain  a  patent,  has  become  by  its 
small  mystery ,  a  money  making  job  to  a  few  triilers  about  the  seat 
of  government ;  when  the  applicant  ought  to  be  able  to  obtain  it  at 
two  offices  alone  ;  the  surveyor  general’s  and  the  secretary’s. 

It  is  impossible  that  the  governor,  unless  he  reside  at  the  seat  of 
government,  could  attend  to  the  individual  call  of  every  man,  who 
wants  a  patent  or  warrant ;  he  signs  blanks  to  be  filled  at  the  se¬ 
cretary’s  or  surveyor’s  offices  with  proper  quantities  of  land  at  the 
stated  prices.  Here  then  is  a  political  foolery  (like  the  governor’s 
commission,  under  the  idea  of  confidence  to  every  drunken  gin  re 
tailer)  played  off  to  make  the  farmer  suppose,  that  while  he  was  in 
waiting,  the  great  go-vernor  was  attending  to  his  business  ;  when 
his  parchment  or  paper,  probably  had  been  signed,  among  hun¬ 
dreds  of  other  blanks,  more  than  a  year  before  his  application,  and  - 
filled  by  a  subaltern  clerk,  known  by  nothing  perhaps  better,  than 
his  insolence  to  those  who  furnish  his  bread. 

To  assign  duties  to  any  officer,  more  than  he  has  time  to  per¬ 
form,  is  as  absurd  as  to  assign  him  duties,  without  the  requisite  in¬ 
formation  upon  which  he  ought  to  act.  The  proper  officer  might 
as  well  sign  the  governor’s  name,  or  his  own,  to  the  paper,  as  to 
do  the  essential  part,  direct  the  quantity  of  land,  and  what  money 
ought  to  be  paid.  All  this  is  done  under  the  idea  of  checks  and 
balances,  or  wheels  within  wheels ,  and  held  up ,  as  security  for  the 
fidelity  of  the  officers,  and  a  prevention  of  errors.  But  ever  since 
the  year  ninety-nine,  when  delinquencies  happened  by  way  pf  spe¬ 
culation  (by  men,  one  of  whom  met  with  elevation  for  his  aid  to 
criminality,  and  his  unfaithfulness  therein  to  his  patron)  the  pub¬ 
lic  are  aware,  that  all  these  offices  furnish  no  check  to  the  officer, 
nor  guard  against  embezzlement  of  the  property  of  the  state.  The 
failings  and  detection  of  one,  may  induce  more  secrecy,  but  is  no 
proof  of  more  honesty  nor  more  safety. 

The  idea  of  their  making  quarterly  returns  upon  oath,  is  a  crite¬ 
rion  by  which  to  judge,  that  other  checks  are  wanting;  and  it  is 
doubtful  whether  this,  solemn  and  sacred  as  it  is,  has  always  been 
sufficient.  But  as  measures  and  not  men  are  here  the  principal 
object,  personality  is  avoided,  as  far  as  justice  to  the  public  will 
permit ;  greater  forbearance  would  border  on  criminality,  and  can¬ 
not  be  expected,  though  a  development  should  excite  detestation 
against  men  in  power,  debased  by  more  than  their  insignificance. 

When  the  republicans  obtained  the  power  in  ninety -nine,  it  was 
expected  that  a  new  arrangement  would  be  made  ;  that  a  consolida¬ 
tion  of  the  land  officers  would  take  place — that  they  would  be  re- 


(  38  ) 


duced  to  one  or  two  at  most,  and  the  applicant  saved  the  trouble 
and  degradation  of  dancing  attendance  in  imitation  of  the  European 
courts,  several  days,  after  four  heads  of  departments,  and  twelve  or 
fifteen  clerks,  merely  to  obtain  a  patent — but  this  was  not  done. 
As  soon  as  the  people,  had  by  their  exertions,  ousted  or  subverted 
the  prevailing  aristocracy,  the  public  mind  in  its  exultations  forgot 
to  compieat  the  object  of  the  change,  which  was  measures ;  and  a 
luW  corn  tiers  under  the  present  system  of  patronage,  found  means 
to  quiet  the  fears  oi  the  legislature,  and  procure  individual  standing 
at  the  expence  of  the  community  ;  a  new  aristocracy  was  formed. 
Hence  it  has  become  doubtful  whether  there  will  be  a  land  office 
reform,  without  being  preceded  by  a  constitutional  reform,  so  as  to 
place  characters  in  othce,  who  would  virtuously  lend  their  aid  to 
divest  government  of  useless  practices  and  unnecessary  ex  pence. 
They  are  now  useful ;  they  encrease  patronage,  and  extend  the 
governor’s  influence,  and  it  would  uncreate  any  of  his  creatures  to 
give  that  information  to  the  legislature,  which  would  tend  to  lessen 
their  number,  or  reduce  their  perquisites. 

It  is  as  true  as  it  is  expensive,  that  there  can  be  no  use,  nor  any 
good  reason  assigned  for  so  many  officers  in  the  land  department. 

1  here  is  not  halt  so  much  use  for  a  receiver  general  at  the  seat  of 
government,  where  the  treasurer  resides,  as  there  is,  for  two  or 
three  deputy  treasurers  in  different  parts  of  the  state  (which  can 
also  be  done  without)  to  receive  public  money,  and  save  the  expence 
to  the  distant  citizens  of  carrying  it  to  the  seat  of  government,  but 
when  it  is  carried  there,  to  pay  it  to  one,  that  he  may  pay  it  to 
another — to  pay  it  to  a  less  treasurer,  the  receiver  general,  that  he 
may  pay  it  to  a  greater  receiver  general,  that  is  the  state  treasurer 
— is  absurd — it  borders  on  the  ridiculous. 

It  is  true  that  the  receiver  general’s  books  are  not  all  posted, 
notwithstanding  that  officer,  in  1799,  received  more  than  one 
thousand  dollars  for  having  performed,  what  it  is  since  evident,  he 
had  scarcely  touched.  Posting  is  desirable,  but  in  these  books,  the 
difference  is  small  to  clerks,  and  the  applicants  know  no  inconve¬ 
nience — -there  is  no  detention.  The  account  is  so  simple  that,  by 
its  date,  it  is  found  by  inspection,  and  as  but  one  or  two  entries  are 
included  in  the  most  intricate,  it  is  settled  with  ease.  It  would  be 
better  that  the  accounts  were  posted,  because  the  state  has  more 
than  once  paid  the  expence  ;  but  as  their  present  situation  has  the 
advantage  of  upholding  sinecures,  and  the  payment  of  clerk  hire  is 
held  in  aid  of  a  subordinate  phalanx,  if  the  future  should  be  judged 
of  by  the  past,  there  is  no  probabilty  of  their  being  completed  for  a 
century  to  come. 

The  receiver  general  appears  to  be  no  more  in  finance  than  a 
subaltern  treasurer,  or  under  receiver,  taking  the  trouble  of  the 
detail  of  the  receipts  of  money  for  land  sold,  from  his  principal  the 
treasurer;  when  the  money  could  be  paid  to  the  treasurer,  or,  in 
the  first  instance,  into  the  bank,  and  the  receiver’s  salary  and  con¬ 
tingencies  saved  to  the  state. 


(  39  ) 

When  the  patent  is  written  under  the  direction  of  the  secretary 
of  the  land  office,  and  signed  by  him  or  the  governor,  it  could  be 
enrolled  by  an  additional  clerk  in  the  same  office,  where  the  patent 
books  should  be  kept ;  and  the  fees  of  the  roll’s-officer  also  saved. 

Under  this  reform,  and  the  abolishment  of  the  comptroller’s 
office,  which  is  totally  useless,  there  would  be  but  five  heads  of 
department  left,  including  the  treasurer,  instead  of  the  present 
eight ;  and  if  necessary,  which  is  doubtful,  the  two  remaining 
land  officers  could  have  one  of  the  other  heads  of  department  asso¬ 
ciated  with  them,  to  continue  the  board  of  property,  or  court  of 
equity,  for  the  decision  of  land  disputes. 

The  duties  to  be  performed  in  the  land  offices,  are  necessary 
duties,  but  they  can  be  performed  in  two,  as  well  as  in  twenty. 
This  is  not  all,  to  pay  two  unnecessary  heads  of  department  under 
the  idea  of  a  check,  that  checks  nothing  but  money  from  the  trea¬ 
sury ,  requires  a  little  explanation. 

The  receiver  general  according  to  the  register’s  report  of  finance, 
receives  annually  for  lands  sold  by  the  state,  from  forty  to 
sixty  thousand  dollars.  He  produces  an  account  quarterly  to  the 
register  general ;  the  secretary  and  surveyor  general  do  the  same 
as  to  the  fees,  and  all  swear  they  make  a  true  return  of  all  the 
money  received,  to  the  best  of  their  knowledge ;  when  their  clerks 
have  received  nearly  all  that  has  been  received,  and  swear  nothing 
about  the  business.  According  to  their  several  returns  they  are  set¬ 
tled  with,  exhibiting  what,  and  only  what  books  they  please ;  yet 
if  they  produced  ail,  that  which  occupies  the  time  of  two  or  three 
offices,  could  not  be  re-settled  so  as  to  correct  errors,  not  to  notice 
omissions,  with  all  the  extra  attention  he  would  be  able  to  give. 

This  check  amounts  to  no  more,  than  the  oath  of  the  officer  for 
the  fidelity  of  his  clerk  1  What  a  check — what  a  baUmce  !  hanging 
all  on  one  side ;  the  oath  of  the  man  who  directs  another  to  receive 
the  money,  and  give  a  true  account  of  the  sums  received  Ml 

Although  the  legisl  tore  by  he  cto  April  20, 1795,  provides  that 
no  clerks  in  the  land  offices  shall  receive  fees,  gratuities,  or  monies 
for  transacting  business  relating  to  said  offices  while  acting  as  clerks 
therein,  have  honestly  endeavoured  to  root  out  bribery  and  corrup¬ 
tion  ;  yet  under  good  natured  com/ilaccncey  it  would  be  morally  im¬ 
possible  to  prevent  overgrown  speculators  from  sliding  a  few 
dollars  occasionally  through  the  lid  of  a  filiable  desky  or  leaving  a 
few  hundreds  of  the  tail  of  a  handsome  deposit,  without  ever  being 
called  for . 

Under  these  idle,  these  visionary  checks,  would  it  be  any  wonder, 
if  such  clerks  should  trifle  with  their  subordinate  confidence,  and 
amass  wealth  by  all  evil  ways  and  means  ?  Would  it  be  any  thing 
mysterious,  if  in  half  a  dozen  years,  they  should  rise  from  needy 
obscurity  into  opulence  ;  should  have  their  weak  heads  turned  with 
their  own  consequence,  and  with  their  equipages,  figure  in  the 
circles  of  luxury  and  shew? 


(  40  ) 


Were  it  not  for  turning  officers  out  of  doors,  who  as  they  are 
judges  in  a  court  of  equity,  may  begin  to  think  themselves  (under 
the  legal  idea)  possessed  of  a  freehold  estate  in  the  salary ,  the  cal¬ 
culations  of  the  price  of  land,  and  interest  could  be  made  with  the 
secretary  of  the  land  office,  where  the  land  is  applied  for ;  and  the 
patent  enrolled  there  also,  where  it  is  written,  as  well  as  to  continue 
the  other  two  offices,  to  the  manifest  disadvantage  of  applicants, 
no  safety  by  way  of  check,  and  a  loss  to  the  state  of  several  thou¬ 
sands  a  year;  beside  the  omissions  made  up  of  negatives  too 
difficult  to  explain  or  calculate. 


ESSAY .  X. 

MORE  OF  THE  GREAT  MASTER  CHECK ,  AND  THE  LITTLE  CHECKS 

AND  BALANCES. 

• 

THE  governor  of  Pennsylvania  has  a  power  by  way  of  check,  to 
the  weakness  and  caprice  of  the  people  in  legislation,  nearly  equal 
to  two  thirds  of  both  branches.  He  can  negative  bills  and  pre¬ 
vent  them  from  becoming  law,  unless  re -passed  bv  two  thirds  of 
each  house.  Men  who  are  fond  of  other  checks  and  balances  be¬ 
side  the  people  ;  and  who  believe  it  essential  to  free  government, 
to  keep  the  branches  distinct  and  independent  of  each  other  ;  can¬ 
not  contend  for  this  power  in  the  executive,  on  any  other  prin- 
►  ciple,  than  that  of  the  people  being  their  own  worst  enemies ,  and 
requiring  this  triennial  pendulum,  which,  by  its  vibrations,  is  to 
keep  them  from  destroying  themselves. 

But  this  check  absurd  as  it  is  ;  absurd  as  must  ever  be  the  idea 
of  one  man’s  wisdom,  being  equal  to  the  deliberate  wisdom  of 
two  thirds  of  the  members  of  two  branches,  taken  by  the  same 
persons  from  the  same  source  ;  still  this  legislative  power  inci¬ 
dental  to  the  executive,  is  neither  more  dangerous,  nor  less  ex¬ 
traordinary,  than  a  judicial  power  arising  from  the  same  source  ; 
the  appointment  of  the  board  of  property,  under  the  tenure  by 
which  the  officers  hold  their  commissions. 

The  governor  has  no  power  to  continue  therp  longer  than  his 
own  triennial  period  ;  but  as  the  constitution  is  silent  on  the  sub¬ 
ject,  tliev  are  only  commissioned  during  his  pleasure  ;  although 
they  constitute,  what  ought  from  its  own  nature,  to  be  consider¬ 
ed  a  respectable  court  of  equity. 

Let  it  be  supposed,  that  like  any  other  officer,  the  governor 
might  be  corrupt :  he  is  the  principal  mover  or  main  spring  of 
this  court,  and  although  he  does  not  sit  therein,  he  can  have  an 
influence  over  it.  For  if  he  can  instantly  annihilate  the  political 
existence  of  the  officers  ;  if  he  can  take  away  their  offices  and' 
their  salaries,  without  shadow  of  corruption,  without  trial  or  com¬ 
plaint,  it  cannot  be  doubted,  but  he  can  have  an  improper  influ¬ 
ence  over  therrl,  and  sooner  or  later,  at  one  time  or  another, 


Mi  )  '  . 

.  ,  / 

there  will  be  a  pernicious  effect  produced  by  their  dependence 
upon  the  will  f  one  man. 

Has  notan  executive  vested  with  so  much  patronage  as  many 
.followers  as  any  other  officer?  May  they  not  be  speculators  ?  Many 
among  such  have  hitherto  been,  and  themselves  or  friends  have 
suits  before  the  board  of  property  where  original  titles  are  tried? 
Cannot  foul  play  be  used  under  the  idea  of  seeing  the  laws  faith¬ 
fully  executed,  without  any  commitment  ?  And  by  the  elocmence  of 
five  hundred  pounds  a  year,  could  not  the  governor  have  as  fair 
a  chance  of  silencing  the  whisperings  of  conscience  in  the  breasts 
©f  the  land  officers  as  corrupt  nature  could  afford  ? 

These  things  may  never  have  taken  place,  yet  a  slight  inves¬ 
tigation  of  the  system  will  flash  conviction  to  every  intelligent 
mind,  that  such  consequences  may  naturally  result ;  that  abu¬ 
ses  might  pass  for  years  without  detection,  even  though  suspici¬ 
ons  arose  of  executive  corruption. 

Why  should  the  governor  hold  these  offices  at  his  will  ?  What 
nearer  connection  can  there  be  between  the  executh  e  and  the 
hoard  of  property,  tliaii  between  him  and  ether  courts,  except 
in  the  minds  of  those  who  discern  no  wisdom  but  that  which 
emanates  from  the  executive  fountain  ?  What  relation  can  exist 
but  that  which  relates  to  patronage,  and  the  security  of  the  pub¬ 
lic  servants  from  the  reach  and  responsibility  of  the  people  ? 
This  has  always  been  the  aim  of  tyrants,  and  of  those  who  pro¬ 
fited  by  their  injustice.  Hence  the  judges  independence  cf  the 
people,  has  been  clamoured  for  by  the  aristocracy  from  one  end  of 
the  state  to  the ‘other,  without  a  single  idea  being  thrown  out, 
that  the  judges  in  the  board  of  property— of  this  court  of  equity, 
should  be  independent  of  the  executive.  Not  a  murmur  that 
they  should  be  legal  characters,  while  the  governor  holds  their 
breath  ;  while  every  possibility  exists  of  legal  tricks  being  played 
off  upon  them  through  the  executive. 

Would  abuses  be  likely  to  take  place,  if  the  land  officers  held 
their  offices  by  tire  approbation  of  the  people’s  annual  representa¬ 
tives,  either  annually  or  triennially  ?  13 y  the  approbation  of  the 
only  men  to  whom  the  proceedings  in  tire  offices  are  completely 
open — by  the  men  who  would  be  able  to  give  them  a  salutary 
check,  and  very  few  of  whom,  have  ever  been  concerned  in  land 
speculations? 

Were  their  appointments  to  be  approbated  by  a  numerous  bo¬ 
dy,  favoritism  as  has  been  elsewhere  shewn,  would  be  excluded, 
and  persons  to  fill  these  offices,  selected  from  the  state  at  large; 
Whose  characters  moral  and  political  could  not  be  questioned. 

It  they  'became  bad,  complaints  they  could  not  obviate  would 
He-exhibited  against  them,  and  none  be  found  able  to  screen  them 
from  the  ordeal  of  representative  democracy. 

There  would  not  then  be  the  least  chance  for  an  open  or  conceal¬ 
ed  confederacy  taking  place  in  any  of  these  offices,  and  extend¬ 
ing  through  the  state,  by  means  of  clerks  and  deputy  surveyors, 
so  as  to  procure  the  surveying  of  the  best  tracts  of  land  as  the 

F. 


(  48  )  * 


price  of  deputy  corruption,  which  might  enable  the  head  of  any 
department  in  the  course  of  eight  or  ten  years,  to  rise  by  specu¬ 
lation,  from  insolvency  to  the  possession  of  a  landed  estate,  worth 
one  hundred  thousand  dollars.  * 

These  are  not  the  dreams  of  theorists,  they  are  the  result  of 
observation,  and  experience ,  without  which  no  system  can  be  un¬ 
derstood.  Such  means  are  within  the  power  of  intelligent  mem¬ 
bers  in  the  legislature,  if  they  act  without  fear  of  the  magnitude 
of  the  task,  or  permitting  the  diversion  of  their  minds  to  other 
objects  by  the  interested  few,  who  endeavour  to  profit  by  their 
’•gnorance  of  human  Gullibility. 

Perfection  will  never  result  from  imperfection  ;  but  it  is  to  be 
hoped,  that  the  people  will  remain  wise  and  virtuous  enough,  t* 
correct  imperfections  which  are  evident,  without  being  alarmed 
by  the  ill-founded  fears  of  the  timid,  or  terrified  into  silence  by 
those  who  a  few  years  ago — a  few  years  before  they  rose'  from 
obscurity  into  office,  were  the  loudest  for  a  reform  of  abuses  ; 
but  who  since  their  elevation,  have  by  their  conduct  evinced, 
that  the  struggles  in  Pennsylvania  in  1799,  have  terminated  only 
xn  placing  a  new  set  of  men  in  office,  whose  morals  and  politics 
were  equally  detestable,  and  many  of  them  not  possessing  half  the 
dignity  of  their  corrupt  predecessors. 


ESSAY  XI. 

ON  I’ HE  DANGER  OF  EXCESSIVE  CONFIDENCE. 

•  •  •  .  C  •  1  .ft 

THE  love  of  glory  or  a  desire  of  fame,  as  well  as  virtue,  has 
a  powerful  effect  upon  the  mind  :  none  who  are  enlightened  caa 
be  totally,  divested  of  this  principle. 

A  wush  of  perpetuating  a  name,  by  acts  of  virtue,  disinterest¬ 
edness,  and  public  spirit,  and  of  handing  it  down  conspicu¬ 
ously  to  posterity,  when  accompanied  by  a  sound  mind,  and 
splendid  talents,  is  capable  of  producing  the  greatest  good. 

When  mankind  are  so  fortunate,  as  to  find  an  union  of  such 
virtues  in  one  or  more  individuals,  and  feel  their  happy  effects 
emanating  from  an  exalted  station  ;  ‘gratitude  consigns  almost 
unlimited  confidence  to  them,  but  freemen  are  too  apt  to  forget 
every  precautionary  check,  and  too  frequently  make  the  man 
stronger  than  the  government  itself,  in  which  he  is  placed. 

As  every  good,  has  attendant  evils  ;  so  sometimes  hath  de¬ 
spotism  occasional  good  ;  but  embarrassment  is  always  the  conse¬ 
quence  of  this  unbounded  confidence. 

Washington  through  a  course  of  unwearied  and  patriotic  ser¬ 
vices,  justly  gained  the  confidence  of  an  enlightened  and  grate¬ 
ful  people.  His  early  earned  fame  united  to  virtue,  spurred  him 
on  at  the  revolution,  to  the  most  generous  actions  ;  his  patience 
and  perseverance,  his  coolness  and  decision,  will  never  be  forgot¬ 
ten  ;  they  will  be  remembered  while  happiness  and  freedom  arc 


(  43  ) 


enjoyed.  The  people  could  have'  trusted  him  with  all  thcii> 
rights  and  privileges,  without  resriction  or  restraint. 

But  what  has  been  the  consequence  ?  Where  Washington  left 
off,  others  stopt  short ;  or  took  up  an  adverse  course.  The  power 
acquired  through  confidence  justly  obtained,  ‘has  since  been  en¬ 
joyed  with  little  more  than  a  shadow  of  claim  to  merit,  to  the  sinis¬ 
ter  advancement  of  families  ;  the  interest  of  their  particular 
friends  ;  and  has  invited  attempts  at  many  high-toned  measures, 
to  the  great  disadvantage  of  the  people. 

Washington  as  well  as  Cincinnatus  was  a  farmer  ;  one  of  the 
men  who  laboured  in  the  earth  ;  the  chosen  people  of  God  (says 
a  celebrated  writer)  if  ever  he  had  a  chosen  people,  in  whose 
breasts  is  kept  alive  the  sacred  fire  of  liberty.  So  great  was  the 
people’s  confidence  in  him,  that  many  who  did  not  approve  ol  all 
the  provisions  of  the  federal  constitution,  said  they  would  never¬ 
theless  acquiesce  under  it,  because  they  believed  it  was  so  form¬ 
ed,  on  purpose  to  provide  a  place  adapted  to  his  greatness  of  mind. 
These  people  forgot  that  Washington  could  not  live  forever. 

These  observations  are  made  to  shew,  that  however  good,  how¬ 
ever  virtuous  the  people,  power  should  always  be  conferred  with 
si  sparing  hand,  guarded  with  a  watchful  eye  ;  the  avenues  to  cor¬ 
ruption  and  despotism  closed,  and  principles  and  measures,  not 
men,  should  be  the  aim  of  politicians. 

Instead  of  extending  the  period  of  reform,  the  proper  time  to 
remove  unnecessary  power,  is  when  virtue  and  wisdom  are  in 
office;  there  is  scarcely  any  other  time. 

It  is  villanous,  weak,  or  vain  in  officers  to  make  objections  and 
say,  “we  do  not  intend  to  abuse  the  public  confidence.”  The 
power  if  necessary,  should  be  well  guarded  ;  if  useless  annihilated. 
The  officer  who  will  not  aid  the  public  by  his  exertions  is  a  tyrant, 
and  plotting  treason  against  liberty.  He  \\  ill  take  it  into  his  own 
safekeeping  and  exclusive  occupancy,  when  opportunity  oilers. 

Rulers  should  be  men  of  moderate  desires,  hating  covetousness. 
They  should  be  men  who  would  be  satisfied  with  useful  power 
and  a  reasonable  compensation  for  their  services,  which  would 
afford  them  a  comfortable  living ;  and  if  much  time  were  spent  in 
the  public  service,  they  should  be  enabled  to  lay  so  muen  aside, 
as  would  prevent  want  in  the  evening  of  life. 

But  the  men  who  seek  more ;  who  seek  to  accumulate  wealth  by 
the  opportunity  an  office  affords  for  speculation,  in  order  that  their 
friends  may  roil  in  luxury,  and  follow  useless  occupations,  degrade 
their  station,  injure  democracy,  and  shouldbe  spurned  into  obscurity. 

Since  Pennsylvania  has  been  a  government,  either  aristocratic 
or  democratic  ;  both  under  the  Penns  and  the  Commonwealth, 
great  and  reiterated  complaints  have  been  made  of  the  rapacity 
of  the  men  near  its  government.  Their  cupidity  for  wealth,  their 
combinations  in  speculation — -their  putting  themselves  in  the  way 
of  the  needy  soldier,  some  to  depreciate  and  some  to  purchase  # 
their  ingrossing  Wyoming  rights— their  speculations  in  the  .\Toi  th 
American  Insurance  Company,  and  five  million  loan,  not  to  men¬ 
tion  new  loans,  purparts,  Sec,  &c.  have  been  so  much  agitated*  so 


(  44  ) 


much  complained  of;  so  frequently  brought  before  the  public,  that 
they  shouicl  mug  ago  have  been  sifted  by  the  executive,  who  is 
solemnly  sworn  to  see  the  laws  faithfully  executed,  and  if  evils 
existed  proper  remedies  applied. 

’Officers  should  not  only  be  virtuous  ;  not  only  innocent ;  but  in  a 
democracy,  so  totally  devoid  of  suspicion,  that  envy  could  not  blast 
their  reputation. 

Whatever  is  obtained  by  speculation  must  be  taken  from  the  com¬ 
munity,  and  it  would  be  the  height  oi  baseness,  as  well  as  injustice., 
that  those  who  are  near  the  government,  who  are  paid  for  their 
services,  should  take  from  the  needy.  It  would  be  abominable  t» 
send  the  war-worn  veteran,  to  sell  his  land  at  the  door,  where  a 
centinel  had  been  previously  placed  to  undervalue  it ;  who  would 
recommend  him  to  a  second,  instructed  to  despise  it ;  and  to  a  third 
who  would  purchase  it  cut  o  l  mere  charity ,  at  seventy -five  per  cent, 
less  than  its  real  value,  ihis  would  indeed  be  the  abomination 
oi  desolation,  and  in  time  destroy  the  people’s  confidence  in 
democracy. 


Is  human  nature  thus  corrupt !  Is  it  possible  that  under  a 
democracy  as  well  as  under  an  aristocracy,  we  find  instances  of  the 
same  evils !  That  we  find  complaints  of  the  designing,  filling 
their  coffers  at  the  public  expence,  as  well  as  at  the  expence 
of  virtue!  If  the  complaints  be  well  founded,  it  proves,  that 
on  our  democracy,  we  have  engrafted  the  features,  the  prin¬ 
ciples'  the  habits  of  aristocracy.  That  the  system  is  defective _ . 

that  although  frequently  changing  men,  we  have  been  neglect¬ 
ing  principles  and  rights.  That  because  the  virtuous  have 
acted  correctly,  we  have  wholly  neglected  tc  correct  the  system, 
so  as  to  restrain  the  vicious.  The  people  have  thrown  off  the 
yoke  of  masters,  and  become  free,  but  have  nevertheless  suffered 
themselves  to  be  imposed  upon  by  many  of  their  own  servants. 

A  method  should  be  devised,  that  would  in  an  effectual  man¬ 
ner,  prevent  every  opportunity  that  an  office  affords,  of  the 
officer  turning  his  attention  to  speculation.  He  should  not  be 
starved ;  the  labourer  is  worthy  of  his  hire ;  but  servants  should  not 
be  too  numerous.  Make  public  business  worth  the  attention  of 
public  characters,  but  after  that  is  done,  prevent  them  from  bat¬ 
tening  upon  the  labour  of  the  poor. 

The  blustering  officer,  inflated  by  a  few  hastily  accumulated 
thousands,  will  spurn  the  idea  of  being  treated  as  a  suspicious 
character,  who,  in  the  exercise  of  public  duties,  ■would  need  a 
check,  or  should  be  laid  under  the  restraint  of  a  penal  code. 

But  the  surest  method  of  reasoning  is,  from  the  past  to  the 
future.  If  officers  have  frequently  departed  from  their  duty  here¬ 
tofore,  others  will  be  as  likely  to  do  it  hereafter;  and  like  the 
community  at  large,  who,  under  law,  are  all  alike  restrained  from 
doing  evil,  because  some  are  corrupt,  they  should  have  laws  so 
adapted,  as  to  prevent  every  chance  of  corruption. 

The  officers  of  the  federal  •  government  are,  in  some  respects, 
prohibited  from  trading,  for  fear  their  public  spirit  should  be  lost;  and 


(  45  ') 


from  patriots,  their  minds  become  mercenary*  and  unfit  for  their 
stations ;  but  the  heads  of  departments  in  Pennsylvania,  are  left  as 
free  as  air,  to  purchase,  by  themselves  or  friends,  any  kind  of 
public  securities,  or  disputed  titles  to  lands,  and  as  part,  or  the 
whole,  of  the  board  of  property,  have  the  priviledge  of  deciding 
upon  their  own  claims. 

These  evils  are  so  repugnant  to  common  sense,  so  productive 
of  the  most  serious  consequences,  that  it  is  wonderful  they  have 
never  been  corrected  under  either  constitution,  though  the  peo¬ 
ple  have  been  loud  in  their  complaints  under  both. 

Would  there  be  any  impropriety,  in  the  state  saying  that  in  its 
important  offices,  “  We  will  give  the  men  employed  a  living ;  they 
shall  have  no  anxiety  about  the  necessaries  of  iife,  but  they  shall 
conscientiously  devote  their  time  to  the  public  service  with  an 
undivided  attention  ;  We  shall  not  accept  it  upon  any  other  terms; 
of  this  they  shall  make  the  most  solemn  appeal,  and  should  they 
be  faithless,  we  will  punish  them  as  criminals.”  Would  this  be 
unjust?  Would  it  be  wrong  to  exact  from  public  servants,  highly 
responsible,  all  their  attention? 

Under  a  democracy,  where  the  government  rests  upon 
public  virtue,  there  should  be  none  but  public  characters  of  tried 
wisdom  and  virtue  introduced  into  the  more  important  offices. 
For  the  duty  of  office  is  not  a  business  of  favoriteism,  it  is  a 
splemn  agency,  in  which  the  people  can  never  be  satisfied,  ex¬ 
cept  in  the  services  of  men  whom  they  know  to  be  faithful  to 
their  interests.  Such  could  be  found,  and  would  be  willing  to 
serve  the  people  upon  these  terms ;  and  the  people  should  not  be 
prevented  from  receiving  the  benefit  of  their  services  through  the 
influence  of  favoriteism  corruptly  or  blindly  flowing  from  one 
man. 

Public  characters  are  as  likely  to  be  virtuous,  at  least,  as  pri¬ 
vate  individuals.  They  enjoy  the  public  confidence,' while  their  ac¬ 
tions  are  satisfactory  to  the  people.  Character  would  aid  their 
virtue,  and  be  a  greater  security  in  future.  The  union  of  these 
in  any  individual,  having  cost  years  in  acquiring,  would  be  dearer 
to  part  with,  than  life  itself,  and  a  future  security  to  the  public, 
equal  to  any  that  it  is  possible  they  can  ever  obtain  of  man. 


ESSAY  XII. 

4 

ON  THE  OFFICE  OF  SECRET* ART  OF  7* HE  COMMONWEALTH  AND  ITS 

PERVERSION. 

IN  a  former  essay  it  is  observed,  that  the  secretary  of  state 
is  intended  to  be  a  check  to  the  executive ;  and  that  the  assembly- 
can  investigate  the  official  conduct  of  the  governor  through  him': 
his  appointment,  therefore,  should  have  been  otherwise  derived, 
in  order  that  the  legislature  might  receive  information  of  execu¬ 
tive  conduct,  through  a  channel  void  of  suspicion. 


(  46  ) 


The  secretary  is  literally  independent  of  the  governor  for  three 
years,  yet,  as  the  governor  can  hold  under  three  triennial  elec¬ 
tions  ;  then  six  years  out  of  nine,  the  secretary’s  subsequent  ap¬ 
pointments  are  pending  with  him;  from  the  disposition  of  human 
nature,  it  is  not  likely  that  he  can  act  a  very  independent  part, 
while  he  knows  that  in  future  he  is  liable  to  be  left  out  for  the 
most  trifling  offence.  He  is,  therefore,  to  be  considered  an  ex¬ 
ecutive  creature,  subordinate  to  the  governor.  His  appointment 
under  the  present  system,  should  have  been  periodically  by 
tne  assembly,  the  body  to  whom  the  governor  in  amenable  for 
misbehaviour  in  office ;  or  else  he  should  be  continued  until  the 
nine  years  expired,  or  the  governor  were  removed. 

But  worse  than  that  has  happened.  The  governor’s  office  has 
twisted  itself  under  usage,  connected  with  laMr,  into  the  secre¬ 
tary’s  office,  and  appears  to  have  absorbed  nearly  all  its  powers. 
So  much  so,  that  the  idea  of  any  other  office  for  governor  seems 
to  be  almost  lost.  1  he  two  offices  have  become  one  in  practice, 
under  the  apparent  control  of  the  governor  himself ;  partly  by- 
inattention  in  framing  laws,  prescribing  duties  to  the  executive ; 
and  partly  by  accidental  habits  or  interested  views. 

I  he  governor,  by  being  vested  with  many  of  the  powers  natu¬ 
rally  belonging  to  the  office  of  state  treasurer,  as  well  as  having 
nearly  all  the  discretion  of  making  contracts  through  the  agency 
of  the  secretary,  has  also  had  the  secretary’s  office  converted  into 
a  kind  of  left-handed  accountant  department.  He  issues  warrants 
from  that  office,  on  the  treasury,  to  pay  the  contracts ;  and  even 
to  pay  quarterly  salaries,  so  low  as  thirty  five  dollars  to  an  asso¬ 
ciate  judge,  which  meet  with  very  little  investigation  afterwards, 
except  a  formal  entry  by  two  of  his  own  accountant  officers,  and  • 
a  draft  which  the  treasurer  is  bound  by  law  to  give ,  until  it  is  paid 
at  bank. 

These  warrants  are  prepared,  printed,  and  then  mostly  signed 
in  the  form  of  other  blanks,  and  filled  in  the  secretary’s  office  as 
if  it  belonged  to  the  governor. 

Would  not  a  fac  simile — a  stamp  to  be  used  by  the  waiter  in 
the  office,  and  applied  to  warrants  after  they  were  filled  with  the 
„  dates,  and  sums  desired,  be  equal,  at  least,  to  a  blank  warrant, 
signed  by  the  governor,  and  afterwards  filled  with  any  sum,  at 
the  pleasure  of  the  secretary,  deputy  secretary,  or  clerk ;  and  as 
good  and  valid  in  common  sense,  if  not  in  common  law  ? 

The  warrants  are  entered  with  the  register,  and  left  at  the 
comptroller’s  after  entry,  for  the  applicants,  and  then  paid  at  the 
treasury,  by  a  check  on  the  bank. 

But  the  treasurer,  with  one-fourth  of  the  expence  and  trouble, 
could  pay  the  money  at  bank,  without  handling  it  himself;  as 
stated  in  Essay  VIII.  by  his  draft  attached  to  the  register’s  certi¬ 
ficate  of  a  settled  account. 

Issuing  warrants  at  the  secretary’s  office,  opens  a  door  for  se¬ 
veral  useless  clerks  and  runners,  unless  their  use  be  sought  in 
the  scurrility  of  ministerial  papers,  published  in  aid  of  triennial 


\ 


e  47  ) 

csKertions,  fbr  the  support  of  an  executive  master,  who  would 
save  the  people  from  their  worst  enemies,  themselves;  or  the 
neat  packages  of  well  boxed  papers  and  pamphlets  spread  at  cer¬ 
tain  periods,  through  the  complacency  of  stage  owners  and  dri¬ 
vers,  to  the  most  remote  corners  of  the  state. 

The  useless  formality  of  warrants,  if  done  at  all,  should  be 
issued  by  the  governor,  through  a  private  clerk  in  an  office  of  his 
own ;  and  a  simple  entry  thereof,  made  at  the  secretary’s  office, 
as  a  constitutional  record  ;  that  the  offices  might  be  kept  as 
distinct  as  the  constitution  designed.  This  would  give  time  for 
recording  the  acts  of  assembly,  which  properly  belongs  to  the 
secretary’s  office. 

The  secretary  of  state,  is  not  intended  by  the  constitution,  to 
be  the  governor’s  secretary  ;  he  is  a  state  officer  at  the  head  of  a. 
department,  over  whom  the  executive  ought  to  have  no  control. 

If  the  secretary  be  remiss  in  his  duty,  or  act  corruptly  in  the 
department,  the  governor  might,  as  in  other  cases  recommend 
an  impeachment. 

The  enrollment  of  the  laws  belong  to  the  secretary  of  state,  a* 
naturally  as  the  enrollment  of  the  patents  belongs  to  the  secretary 
of  the  land  office.  The  rolls  office  and  the  receiver  general’s 
appear  to  be  appendages  of  the  landed  estate  ;  when  all  were  te¬ 
nants  under  the  proprietary  aristocracy,  in  the  time  of  the  pro¬ 
vince,  and  altogether  useless  under  the  commonwealth. 

There  was  then  a  receiver  general,  as  well  as  a  province  trea¬ 
surer,  because  the  proprietary  had  an  interest  separate  from  the 
people  of  the  province.  The  money  arising  from  the  sale  of  lands, 
as  well  as  quit-rents  was  his  own,  and  never  to  go  into  the  treasury, 
to  mix  with  the  money  of  the  people. 

There  is  but  one  interest,  the  interest  of  the  people  under  the 
commonwealth  ;  and  the  secretary  of  the  land  office  who  writes 
the  patent,  should  be  the  officer  to  enroll  it.  They  are  all  in  one 
form;  and  the  patent,  and  the  enrollment  book,  both  printed 
blank  and  filled.  They  should  be  done  at  one  place  (for  each 
would  take  but  a  few  minutes)  to  avoid  inconvenience  to  appli¬ 
cants.  The  price  of  the  land,  the  interest  and  fees  should  be  as¬ 
certained  at  the  same  place,  and  paid  at  bank  before  the  patent 
issues.  The  ticket  or  receipt  for  the  money,  should  entitle  the 
bearer  named,  to  the  receipt  of  the  warrantor  patent,  and  should 
be  finally  deposited  with  the  treasurer  as  a  check  to  the  bank. 

The  secretary  has  always  collected  and  arranged  the  laws,  and 
should  enroll  them  as  soon  as  they  are  put  into  his  hands. 

The  partial  payment  of  fees  to  different  officers,  arose  from 
the  officers  being  formerly  supported  by  those  fees.  They  were 
then  their  means  of  living  ;  but  the  officers  all  except  one,  arc  now 
salary  officers,  and  should  have  nothingto  do  with  illegal  perquisites. 

It  is  remarkable,  but  no  way  marvellous,  that  this  money  in  its 
passage  to  the  treasury,  has  always  had  a  contrary  motion  from 
the  land  speculations.  If  the  latter  were  rapid,  the  former  was 
slow.  If  the  speculations  were  slow,  the  progress  of  the  money 
seemed  faster  and  sometimes  even  direct. 


% 


(  *8  ) 

ESSAY  XIII. 

€F  THE  EXECUTIVE  INFLUENCE . 

IN  Essay  VII.  it  is  said,  that  the  state  treasurer,  since  the  close 
of  the  revolutionary  war,  has  been  reduced  to  the  shadow  of  a  shade. 
He  is  truly  now  rendered  an  unnecessary  officer,  who  has  no  du¬ 
ties  to  perform.  He  forms  no  kind  of  check  to  the  exorbitant 
power  of  the  executive,  which  comes  in,  by  such  indirect  and  un¬ 
expected  modes,  that  very  few  have  a  knowlege,  that  his  power  is 
absolute  over  the  money  of  the  state. 

It  has  been  heretofore  shewn,  that  the  whole  power  of  the  trea¬ 
sury  department  is  in  the  hands  of  the  governor.  He  can  directly 
or  indirectly,  under  law  or  the  construction  of  law,  draw  out  every 
cent  of  money,  and  if  he  chuses,  legally  trifle  in  this  manner  with 
the  principle  of  the  constitution,  which  secures  to  the  people  the 
election  of  the  treasurer  annually,  by  their  amiual  representatives. 

Of  what  use  can  it  be  to  elect  a  treasurer  with  so  much  forma, 
lity,  to  take  care  of  the  money,  which  the  laws  direct  to  be  con  - 
stantly  deposited  in  bank  ;  and  then  oblige  him  by  another  law, 
immediately  to  draw  it  out,  to  pay  the  orders  of  the  governor’s 
accountants  (signed  by  the  governor)  whenever  they  wish  it 
should  be  drawn  ? 

The  governor’s  orders  might  as  well  be  directed  at  once  to  the 
bank  where  the  money  is  deposited,  without  uselessly  passing 
through  the  hand  of  the  treasurer,  wffio  cannot  check  an  impro¬ 
per  payment. 

But  the  shadow  of  a  shade ,  has  in  it  another  meaning  under  this 
constitution ,  quite  as  applicable  to  the  assembly  that  produces  tha 
treasurer,  as  to  the  treasurer  that  is  produced. 

If  some  few  members  of  the  general  assembly,  say  nine  sena¬ 
tors  out  of  twenty-five,  or  more  than  one  third  out  of  the  present 
ratio,  be  partially  diverted  from  a  firm  attitude  ;  if  these  nine  can 
be  brought  fairly,  or  unfairly  seduced,  to  subserve  the  executive 
will ;  ought  we  not,  after  the  example  of  the  worshipful  judge,  to 
call  them  an  executive  negative  pregnant ,  able  to  control  (with  the 
governor’s  aid)  the  legislative  will  of  sixteen  other  senators,  and 
the  whole  number  of  members  in  the  house  of  representatives  ? 

Here  the  negative  wisdom  of  nine  senators,  with  a  little  exe¬ 
cutive  aid,  is  too  heavy  for  the  possitive  wisdom  of  sixteen  other 
senators,  and  the  whole  house  of  representatives.  This  system 
should  be  styled  an  eulogium  upon  the  weakness,  folly,  or  cunning 
of  human  nature. 

On  a  view  of  these  things,  is  it  not  a  fair  conclusion  that  legis¬ 
lative  proceedings  may  be  so  marred,  as  that  nothing  important 
■will  be  supported,  that  counteracts  the  opinions  and  wishes  of  a 
cunning,  intriguing,  executive  magistrate  ? 

’Tis  true,  a  governor  may  be  so  vain,  and  hold  the  people  and 
their  representatives  in  sucli  compleat  contempt,  that  a  spirit  of 


•  (  49  ) 

te^encyofthe^rtaciplcs  of '  aristocr  °cyS-t0atKf ''oiit'1  l'°  na,ln  a* 
cmive.leS  “  an  extl'aord*naiT  manner  Z  r  the hSd 

Perhaps  this  has  been  done  in  a  few  instances  hut  h  Uo  \ 

fiasgs.  n&r ^  te»JSK 

How  many  principles  are  brought  forward  thp  eM«. 

rr?  fo>  !eFtre  (wes 

e.tam  class)  which  have  been  warned  into  onp  ov  „„i  c  ,  : 
houses,  or  primed  through  the  comShtee  of  wa;  v“  adZ^ 

come  from  &  ^  eXteM  ?  Whet/do  these  S 

suspecting,  seldom^no  “where  th^' origin  “e^s!)1'111,  U?I 

vams.  as  well  as  a  few  of  the  new,  when  they  detect  these  ,™ 
nous  rmposnmo  ke  a„  the  hcad  (h  aJ ah]e 

through  SnTtIy  hapPenS  that  these  illegitimates  process 

Ofdoo^s,  and  inai!d  «« 

or  a  majority  of  their  members  discover  their  pentic  ius^ndlncv’ 
If  baseness  is  sometimes  discovered  near  the  assembV  t? ' 
authors  are  covered  from  investigation,  cither  bv  thdHns  m  Ifl 

Wv  ses?der  iUb'appointments’ an‘]  theiracts  too  soon  forgotten’ 
Lveiy  session  opens  a  new  scene  of  intrigue,  and  Drodn.  ,- 

and  inexperienced  members  to  be  intiif'ied  with  •  some  rc,’  i 

-uses 

executive6 iH  pr°pose?  t0  the  people  of  PennsySto  ves  the 

from  the  ectly  ;vlth  leS»Mve  powers,  and  to  relieve  them 
Bl|t  if  ,L  pence. of  an  as?embly,  they  would  justly  spurn  the  idea 
as  he  w  Uh«eCU!1VC  "?  Prc<luently  procure  such  laws  indirectly 
nine  senator,’ ,  i  “  f  r  onc.l’yndl  ed  and  eleven  members,  induce- 
io'  s  ml!  r  bc  °f  h,S  °P.Imo"’  and  firevcAt  lavs  that  are  obnox- 

annihila*ion  as  tli'e^  **  bnn"s  le?islative  power  as  near  to 

tage  is  also  m  th  .  ?bject  s),C0P!lant  could  wish  ;  this  advan- 
auilim  b  1  tiic  S1C  e  °  t  ie  executive,  that  the  idea  of  legislative 

bn,r*r  t0,tbc  pcoPle>  «» adds  .sanction  to  mfasures! 
"Inch  Without  it  would  be  scouted  from  the  community. 

G  : 


(  50  ) 

If  to  these  considerations  be  added,  the  weight  of  official  influ¬ 
ence  at  the  annual  election,  exerted  in  the  different  counties 
through  the  prothonotaries,  registers, $nd  recorders,  deputy  and 
sub-deputy  surveyors,  sub- states  attorneys  and  brigade  inspectors, 
who  mostly  look  for  re-appointment,  or  continuance  ;  a  weight 
that  under  this  system,  naturally  falls  into  the  scale  in  favour  ol 
the  candidates  that  are  known  to  be  pursuing  the  measures  of  the 
executive  ;  and  afterwards  add  to  all  this,  a  few  brigade  inspec¬ 
tors,  and  deputy  surveyors  who  (holding  commissions  under  the 
executive)  are  improperly  sent  to  the  assembly  ;  few  will  be  so 
confident  as  to  affirm,  that  an  aristocratic  governor  has  it  not  in 
his  power  directly  or  indirecly  to  give  laws  to  the  state,  prejudi¬ 
cial  to  their  interests,  pernicious  to  their  liberties,  and  destructive 
of  free  government. 

This  was  not  seen,  scarcely  suspected  by  many  for  some  time, 
under  the  early  operation  of  the  present  constitution  ;  but  now 
nothing  seems  better  understood,  nor  is  perhaps  better  managed 
bv  the  few  who  cling  to  power,  who  are  even  busily  employed  in 
under  drudgery,  too  despicable  even  for  vicious  minds  of  a  more 
capacious  make. 


ESSAY  XIV. 

REFORM  THE  VITAL  PRINCIPLE  OF  FREE  GOVERNMENT. 

A  political  system  approaching  towards  perfection,  must,  like 
the  animal  svstem,  have  a  rennovating  principle  within  itself,  by 
which  the  evils  arising,  as  they  are  discovered,  may  be  removed, 
and  the  body  politic  brought  to  a  sound  and  healthy  state. 

The  most  perfect  of  the  works  of  creation  known  to  man,  is 
man  And  in  every  instance  when  he  is  attacked  by  disease,  he 
finds  a  principle  within  his  system,  tending  ,  to  remove  the  evil, 
restore  order,  and  produce  that  regularity  which  nature  intended 

should  reign.  ...  ,  .  r  „ 

In  every  system  that  can  be:  formed,  there  will  be  imperfec¬ 
tion  ;  but  the  mind  of  man  is  incapable  of  standing  still.  It  is  ei¬ 
ther  progressing  in  knowlege,  or  declining  into  ignorance. .  It 
is  either  advancing  in  virtue,  or  by  imperceptible  degrees,  sink¬ 
ing  into  corruption.  When  the  people  neglect  their  interest, 
they  afford  their  rulers  an  opportunity  of  retreating. from  freedom 
back  towards  despotism.  Though  the  system  remain  literally  t  le 
same,  the  officers  take  advantage  of  its  defects,  and  mostly  by 
gradual  abuses,  entrench  themselves  and  friends  in  office,  uniil 
the  general  interest,  as  much  as  possible  is  put  out  of  view. 

Hence  the  necessity,  that  every  original  form  of  free  govern¬ 
ment,  like  the  federal  constitution,  should  have  a  conventional 
article,  providing  a  mode  of  correction  for  its  weak,  inconvenient, 
and  defective  parts.  And  then  so  long  as  the  vigilance  of  the  pco- 


(  51  ) 


pie  remained,  so  long  as  they  would  have  as  good  a  form  of  go¬ 
vernment,  as  it  is  possible  for  the  limited  wisdom  oi  man  to 
obtain. 

If  the  people  became  inattentive  and  depraved,  a  constitution 
would  not,  could  not,  be  of  any  avail,  long  to  secure  them  in  the 
enjoyment  of  liberty.  It  is  therefore  idle  to  fear  a  revision — to 
fear  that  an  amendment  to  the  constitution,  would  set  every  thing 
or  any  thing  afloat,  that  was  not  afloat  before  ;  or  that  it  would  evi¬ 
dence  such  versatility  in  the  people,  as  finally  to  destroy  the  credit 
of  democracy,  the  confidence  they  have  in  their  government,  and 
induce  them  to  enlist  for  their  safety  and  ease  under  a  despotism. 

Vigilance  and  a  love  of  freedom,  lead  to  an  examination  of  the 
conduct  of  officers ;  and  if  unfaithfulness  be  evident,  under  a  diffi¬ 
culty  of  removal,  it  is  a  proof  of  defects  in  the  constitution  or 
laws  ;  but  it  would  answer  no  valuable  purpose  to  stop  there  ;  at¬ 
tempts  should  be  made  to  displace  corrupt  men  ;  and  by  amend¬ 
ments,  as  far  as  possible,  prevent  an  opportunity  of  similar  evils 
arising. 

A  difinition  of  rights,  a  restriction  of  powers,  and  a  specification 
of  duties,  have  many  advantages ;  but  the  keystone  of  liberty ,  is 
the  annual  convention  of  the  people,  by  their  representati\  es,  to 
consult  upon  their  own  affairs,  and  to  pursue  thereby  their  own 
interests  and  happiness. 

Without  this  annual  meeting,  the  servants  of  the  people  would 
soon  become  their  masters.  The  laws,  the  constitution,  and 
every  thing  that  is  valuable  to  freemen,  would  be  prostrated  lower 
than  the  earth  itself. 

This  annual  meeting  of  the  people,  by  their  annual  represen¬ 
tatives,  under  all  governments  where  it  has  been  established,  has 
been  the  dread  of  aristocrats,  made  tyrants  to  tremble,  and  been 
hateful  to  all  the  proud  oppressors  of  man. 

Rewards  or  bribes,  in  a  numerous  assembly  will  be  vain. 
Members  will  sometimes  err ;  individuals  may  be  influenced  or  cor¬ 
rupted  ;  but  it  will  be  morally  impossible  for  the  majority  of  a  large 
body  taken  annually  from  the  people  to  be  corrupted  and  wilfully 
stray  from  their  duty,  d  hey  will  remain  the  willing  defendc  i  s  of 
liberty,  moved  by  nothing  but  the  interests  and  wishes  of  their  con¬ 
stituents,  which  they  will  pursue  as  their  own.  In  so  enlightened 
a  state  as  Pennsylvania;  the  period  must  be  short,  that  they  may 
not  forget  their  own  dignity,  and  lose  sight  of  their  principles  of 
liberty,  so  as  to  adulate  a  tyrant  or  rally  round  a  despot. 

This  annual  meeting  of  the  people,  is  the  great  security  of  equal 
rights ;  it  ought  never  to  be  dispensed  with  at  any  time,  nor  on  any 
occasion;  nor  ought  any  power  or  office  beheld  for  a  longer 
tenure.  But  it  need  not  always  be  confined  to  legislation  ;  the 
people  ought  to  act  periodically  as  a  revisory  body.  Once  in  ten 
years,  there  should  be  elected  a  convention  solely  lor  that  purpose, 
and  in  that  year  ordinary  legislation  to  be  omitted. 

Defects  in  the  constitution  could  be  examined  and  corrected ; 
and  if  very  great  caution  were  necessary,  in  order  that  all  might 


(  52  ) 


h-vre  information  upon  so  important  a  subject,  any  alteration  or 
amendment  which  might  be  made,  should  be  submitted  to  the 
adoption  or  rejection,  of  the  ordinary  members  of  the  next  suc¬ 
ceeding  legislature. 

Delegates  coming  together  as  a  convention,  once  in  ten  years, 
would  be  as  great  a  guard  to  the  liberties  of  thepeopie  that  year, 
as  the  ordinary  legislature  could  be  other  years,  and  no  additional 
expence  thereby  would  be  brought  upon  the  people. 

,  sucJl  a  P1  ii'-ciple  as  this,  been  engrafted  in  the  constitution, 
tne  clamour  about  anarchy  and  self  destruction  would  not  have  been 
made.  Evils  as  they  became  evident  would  have  been  removed. 

The  servants  cf  the  people  would  not  have  made  such  strides 
towards  becoming  their  masters ;  and  we  should  have  been  progres¬ 
sing  gradually  towards  a  state  of  unexampled  rational  liberty;  not 
tde  envy,  but  the  desirable  object  of  imitation  for  other  states. 

1  lie  enemies  of  mankind  always  wish  to  meet  them  single,  that 
they  may  be  able  to  defeat  them  when  their  strengh  is  divided.  Thev 
are.  always  afraid  of  the  people  coming  together  to  consult  upon 
their  common  good.  They  are  willing  to  call  it  riot,  sedition,  and 
insurrection  whenever  they  can,  and  if  possible  scare  the  people 
with  themselves.  They  are  well  assured  that  every  amendment 
to  constitutions  as  well  as  every  revolution  in  government,  however 
unhappily  some  have  been  conducted,  has  taken  place  in  conse¬ 
quence  oi  die  abuse  of  power,  and  stands  as  a  monument  censuring 
the  conduct  of  public  officers. 

As  the  weak  and  defective  parts  of  law,  are  the  gain  of  dishonesty, 
and  the  advantage  of  the  bar,  so  the  defects  in  the  constitution,  are 
converted  to  the  benefit  of  the  corrupt,  who  administer  the  govern¬ 
ment.  As  soon  therefore  as  any  attempt  is  made  to  remedy 
defects,  and  remove  abuses,  no  wonder  that  a  clamour  is  raised 
against  the  reformers.  The  necessity  of  a  reform  having  arisen 
from  the  corruption  and  abuse  of  officers,  they  and  their  parasites 
justly  anticipate  a  removal,  on  being  spurned  from  their  elevation 
and  degraded. 

They  revile  the  ignorance  of  the  swinish  multitude ,  but  really 
dread  the  wisdom,  virtue,  and  vigilance  of  the  people,  which,  alive 
to  the  subject,  will  hurl  them  from  their  once  fancied  security. 

Though  they  predict  destruction  to  pursue  the  heels  of  every 
improvement,  they  believe  nothing  in  danger,  but  themselves,  their 
offices,  and  their  salaries. 

They  are  careful  of  the  public  money,  when  a  convention  is  about 
to  be  called,  but  anxiously  support  the  bench  and  the  bar,  though 
the  consequence  of  that  independence,  in  the  trial  of  the  judges 
and  justices  by  the  legislature,  within  a  few  years,  has  cost  the 
state  more  than  fifty  thousand  dollars. 

’1  hey  know  that  a  revision  of  the  constitution,  would  remove  the 
cause  of  such  enormous  expences,  but  they  are  also  certain,  that 
themselves  and  adherents  would  for  ever  be  removed,  entirely 
from  political  life,  unless  they  reform  their  lives  and  their  political 
principles  to  due  respect  for  elective  government. 


(  5*  ■  ) 

i  '  ,  -  *  *  ' 

ESSAY  XV. 

***  EXECUTIVE  POWER  AS  IT  is  ABSURD ,  DESPOTIC  IN  FACT 

ON  a  perusal  of  the  foregoing  essays*  it  will  be  evident,  that 
the  executive,  under  such  a  system,  as  is  contemplated,  would  not 
have  that  exorbitant  power,  that  the  executive  now  possesses  Iu 
democratic  institutions  but  little  should  fall,  in  times  of  peace  to 
the  share  of  any  one  officer.  When  it  is  otherwise,  there  cannot 
be  a  fair  and  useful  distribution. 

The  governor  at  present  is  well  chosen.  Every  citizen  who  has 
resided  two  years  in  the  state,  and  within  that  time  paid  a  state  or 
county  tax,  has  a  voice  ;  poor  and  rich  alike  ;  but  the  error  lies  in 
committing  too  much  power  into  his  hands.  He  has  more  than  the 

wisdom  of  any  one  man,  united  to  the  strictest  virtue,  should  be 
entrusted  with. 

As  there  ought  to  be  but  one  operative  will  in  a  democracv,  the 
will  of  a  majority,  as  soon  as  that  is  ascertained  in  an  enlightened 
community  needs  no  check ;  else  it  would  be  no  longer  a  demo¬ 
cracy  ;  but  a  suspicious  aristocracy,  vain,  delusive,  and  dangerous 

If  it  he  checked  at  all,  it  should  be  by  a  superior  intelligence 
derived  from  a  higher  source  than  man  ;  such  as  no  individual  in 
any  community  can  possess. 

If  there  is  a  fair  expression  of  the  public  will,  it  should  not  af¬ 
terwards  be  checked,  by  a  part  of  that  will,  existing  in  a  few  selfish 
or  vain  individnals. 

When  Mifflin  sat  in  a  former  assembly  and  in  convention,  he 
had  but  one  vote,  like  any  other  member;  and  in  1790  when  lie 
was  elected  governor,  it  may  be  asked,  if  he  had  more  wisdom  by 
virtue  of  that  election,  than  he  formerly  possessed  ?  Had  it  en- 
creased  so  much  as  to  make  it  a  just  balance,  equal  to  two  thirds 
less  one,  of  both  houses  of  assembly  ? 

M‘Kean  was  in  the  convention  of  ninety ;  and  let  his  Iaw-know- 
lege  have  been  what  it  might  before,  his  vote  in  that  body,  was 
neither  more  nor  less,  than  the  vote  of  Pedan  of  York,  or  lawyer 
Lewis  of  Philadelphia.  But  in  the  year  1799,  by  being  elect¬ 
ed  governor,  under  the  magic  of  the  present  constitution,  it  instan¬ 
taneously  became  equal  to  two  thirds,  less  one,  of  the  whole 
legislature. 

Mifflin  when  governor  in  December  ninety-nine,  had  power 
equall  to  two  thirds,  less  one,  of  both  houses  ;  but  in  the  very  same 
month,  the  same  man  under  his  election  to  the  assembly  in  the 
house  of  representatives,  had  no  more  power,  nor  wisdom  of  course 
than  its  seventy-eighth  part. 

Can  a  mere  change  of  situation,  from  the  assembly  to  the  execu¬ 
tive  chair,  give  a  man  wisdom  and  virtue,  equal  to  the  additional 
power  he  immediately  receives,  when  he  is  elected  governor?  Or 
can  a  subsequent  election  to  the  assembly,  take  away  his  under¬ 
standing  ? 


I 


(  54  ) 


Mifflin  and  M-'Kean,  became  no  wiser  on  being  elected  govern¬ 
ors.  They  remained  the  same  in  respect  of  knowledge,  or  they 
declined.  Any  alteration  neither  made  them  more  useful,  nor 
respectable.  They  were  neither  more  easy  of  access,  nor  their 
passions  nor  appetites  more  strictly  subjugated.  They  were  still 
men  of  like  passions  with  other  men,  and  comparatively  not  pos¬ 
sessing  superior  merit  or  knowledge  to  thousands  of  other  men  in 
the  state.  They  were  still  men;  and  let  the  people  elect  to  the 
same  office  whom  they  may,  they  never  will  be  better  men  for 
being  clothed  with  useless,  exorbitant,  or  dangerous  power. 

When  the  democratic  will  is  obtained,  it  should  be  operative. 
The  executive  should  be  so  designed,  as  to  produce  so  desirable 
an  effect.  This  cannot  be  done  while  the  system  arrays  one 
branch  in  hostility  to  another,  as  the  legislature  and  governor  are 
now  placed;  nor  while  one  man  in  one  branch  has  so  much  power, 
who  may  have  little  wisdom  or  prudence,  and  other  men  in  other 
branches  so  little  weight. 

All  the  power  necessary  to  an  executive  in  a  democracy,  is  merely 
to  be  the  organ,  the  central  point  to  further  not  frustrate  the  legisla¬ 
tive  will,  and  when  that  will  shall  be  known,  to  bring  it  into  operation. 

But  even  in  this,  it  should  not  be  single  ;  the  governor  should 
have  the  assistance  of  persons  deriving  power  seperately,  in  ano¬ 
ther  way  from  the  people,  in  two  or  three  years,  arrogance  and 
vanity,  of  which  we  find  plenty  about  every  man,  might  build 
him  up  so  as  to  check  or  prevent  tlie  will  of  a  majority. 

He  should  have  a  council  derived  from  the  legislature.  Each 
house  as  soon  as  organized  might  elect  two  or  three  members  to 
continue  one  year ;  to  associate  with  the  govenor,  who  together 
should  possess  the  executive  power. 

•The  governor  should  be  the  organ  or  head,  and  on  an  equal 
division.,  besides  his  own,  have  the  casting  vote 

The  infallibility  of  a  governor,  and  his  despotic  power  are  in 
government  precisley  as  pernicious,  as  the  infallibility  in  any 
church,  of  one  of  its  members,  when  clothed  with  absolute  power, 
and  placed  over  others. 

Laws  passed  by  a  majority  of  the  members  elected  to  serve  in 
each  house  ;  or  by  a  majority  elected  to  serve  in  both  (when  the 
two  disagree)  executed  and  carried  into  effect  by  such  an  execu¬ 
tive,  could  not  fail  of  being  an  expression  of  the  public  will,  and 
would  give  general  satisfaction, 

As  the  executive  duties  would  be  lessened,  by  the  people's  elec¬ 
tion  of  the  justices  and  county  judges ;  and  the  court  appointment 
of  prothonotaries  and  recorders  there  would  be  few  appointments 
for  the  executive  to  make,  except  the  four  heads  of  departments, 
and  some  of  the  most  important  judicial  and  military  officers,  which 
youldbe  approbated  by  one  or  both  houses  of  the  assembly. 

If  the  powers  and  duties  were  thus  lessened,  the  executive 
could  attend  to  the  operations  at  the  seat  of  government,  where 
the  principal  officers  would  perform  their  duty.  And  the  council 
being  annual,  would  not  be  likely  to  enter  into  the  speculations 
which  have  so, after  prevailed  to  the  injury  of  the  state. 


(  55  ) 


Yet  it  would  be  better  to  have  an  annual  treasurer  with  controlling 
powers  directly  responsible  to  the  assembly ;  and  the  reasonableness 
and  propriety  of  whose  payments  should  annually  be  investigated 
by  a  committee  of  accountants  appointed  from  their  own  body. 

Under  such  a  system  the  assembly  would  have  but  little  to  do, 
but  guard  the  liberties  of  the  people  and  legislate,  the  sessions 
would  not  be  near  so  long  as  hearing  the  complaints  against  judges 
and  justices  now  make  them,  and  the  public  expence  thereby 
would  be  considerably  lessened. 


ESSAY  XVI. 

PROJECT*  FOR  A  REFORMATION  OF  THE  CONSTITUTION. 

TIIE  preminent  amendments  proposed  to  the  constitution  are, 
— '1st.  The  legislature  to  be  elected  annually,  without  distinction, 
and  vested  solely  with  the  law-making  power.  When  met,  to  be 
divided  by  lot,  equally  into  two  houses.  Bills  to  pass  by  a  majori¬ 
ty  of  the  members  elect  in  each  house,  or  on  a  disagreement  of 
the  two  houses,  by  a  majority  of  the  members  elect  of  both  hou¬ 
ses,  convened  in  one  house,  and  then  to  become  law. 

2d.  The  executive  power  to  be  vested  in  a  governor  chosen  by 
the  people  for  three  years  ;  to  be  aided  by  a  small  annual  council. 

3d.  The  judicial  power  to  be  vested  in  justices  of  the  peace 
elected  by  the  people  in  townships  or  districts  and  to  serve  three 
years.  In  county  courts  consisting  of  the  justices  of  the  peace  ; 
or  county  judges  to  be  chosen  by  the  people,  one  annually,  and 
to  serve  five  years.  Presidents  of  districts,  over  from  three  to  six 
counties,  to  be  chosen  by  the  people  if  convenient;  or  nominated 
by  the  executive,  and  approbated  by  the  legislature,  to  serve  five 
years.  Supreme  judges  for  the  trial  of  capital  offences,  over  the 
whole  state  ;  to  be  nominated  by  the  executive,  and  approbated 
by  a  vote  of  the  legislature,  and  not  to  conlinue  in  office  more  than 
seven  years. 

4th.  The  officers  of  militia,  to  be  elected  within  their  compa¬ 
nies,  by  the  members  of  each  ; — of  regiments,  by  the  members 
of  each  ; — of  biigadesby  the  field  officers  of  regiments  ; — and  of  di¬ 
vision,  by  the  majority  of  commanders  of  regiments  ;  and  to  be 
commissioned  for  five  years  only. 

5th.  The  holding  offices  under  the  United  States,  to  be  incom¬ 
patible  with  holding  of  offices  under  this  state  ;  and  the  holding 
of  any  office  except  in  the  militia,  where  no  salary  ur  perquisite 
is  annexed,  incompatible  with  holding  a  seat  in  the  legislature. 

6th.  Prothonotaries,  recorders,  and  other  court  officers  to  be 
appointed  by  the  respective  courts  for  five  years. 

7th.  Sheriff’s  to  be  elected  as  at  present.  The  highest 

in  vote  to  enter  security  in  court  and  be  preferred.  On  failure 
of  giving  security  by  the  first,  the  second  or  third,  on  compliance 
to  be  received  ;  or  on  tfie  death  of  the  sheriff,  to  serve  during  the 


(  56  ) 


year.  No  coroners  necessary ;  their  duties  transferred  in  case  of 
Casual  death  to  the  justices,  and  court  business  for  or  against  the 
sheriff  performed  under  deputations  from  the  court. 

3th.  The  state  treasurer  to  be  elected  annually  as  at  present ; 
and  all  the  other  officers  in  the  receipt  of  public  money,  to  derive 
their  appointments  from  him,  or  from  the  legislature  ;  and  to  be 
kept  distinct  from  the  executive. 

9th.  The  governor,  heads  of  departments,  supreme  mdses, 

rnrrPleS!fentS  °f  ^ls.tricts  to  have  salaries,  which  shall  neither  be 
cnci  cased  nor  diminished,  during  the  period  for  which  they  shall 
have  been  elected  to  serve.  But  salaries  may  be  altered,  and  the 
la^_°Per??e  immediately  after  the  expiration  of  their  period. 

10th.  No  officer  to  be  commissioned  for  a  greater  length  of 

™e  than  ave  years  ;  and  liable  to  be  impeached  for  misbehavi- 
oux ,  or  removed  for  mcompetency. 

Uth.  County  judges  to  have  daily  pay  but  no  salaries. 

m.  A  convention  instead  of  the  legislature  to  sit  every  tenth 
year.  i 


ESSAY  XVII. 


rsoyEcr  of  a  reform  id  legislation  and  administration. 

THE  laws  may  be  amended  in  the  following  manner,  so  as  to 
save  a  large  sum  of  money  annually  to  the  state  1 

1st.  All  public  money  received  i'n  the  first  instance  at  bank 
t  ie  treasurer  without  handling  it  in  any  instance,  pay  it  out ’by  a 
check  attached  to  the  register’s  certificate  of  a  settled  account  •  with 
power  to  stop  payment,  until  convinced  of  its  propriety 
-d-  The  treasurer  vested  with  controlling  powers,  and  prevent- 

SSI2  Underthe  ^  comptroll- 

office',  and  bound  to^korfhis'^actV'1181^1  ^  the  g°Vernor’s 
4th  The  governor  to  draw  money  from  the  treasury  as  others 
hisoffice  n°  Wan'aMS  f°rthe  P^ment  thereof  Pass Through 

5th  The  receiver  general’s  office  abolished,  and  the  duties  of 

calculation,  and  settlement  of  land  accounts,  transferred  to  the 
secretary  of  the  land  office.  transierred  to  the 

afSiSkT1  he  or  they  10  leare  the  bank  Ud-  -  ■ 


I 


t'sr  > 

•  i  > 

8th.  The  office  of  deputy  secretary  of  the  state  abolished,  and  a 
deputy  treasurer  established;  to  assist  while  living,  and  transact 
business  on  the  death  of  the  treasurer. 

9  th.  The  officers  of  government  and  clerks  prohibited  directly  or 
indirectly  from  trading  in  land  or  public  securities  under  severe 
penalties.  And  all  the  real  estate  held  by  them,  when  they  entered 
business,  together  with  what  they  might  purchase  while  in  office, 
held  as  security  for  the  property,  private  and  public,  which  passed 
through  their  hands. 

10th.  The  mode,  of  granting  tavern  licences,  changed  from  the 
governor,  to  the  county  courts,  and  the  county  treasurer  checked, 
by  the  annual  report  of  the  prothonotary  under  oath  to  the  register- 
general. 

Under  the  foregoing  reform  of  law,  there  would  be  a  large  sum 
annually  saved.  And  if  the  responsibility  of  payment  were 
placed  upon  the  treasurer,  where  the  constitution  designed  it  should 
rest,  it  is  much  easier  to  conceive,  by  a  view  ol  the  annual  pay¬ 
ments  heretofore  made,  and  an  examination  into  the  data,  upon, 
which  they  are  founded,  than  pleasant  to  say,  how  much  money 
might  be  saved  by  the  treasurer  paying  it  away,  as  governors 
would  do  their  own. 

The  salaries,  perquisites,  and  contingencies  of  the  secretary  oi; 
state’s  office,  now  annually  amount  to  about  §6,136 ;  which  under 
a  reform  of, law,  would  be  lessened,  by  striking  off  most  of  the 
printing,  the  deputy’s  salary,  and  the  salaries  of  all  the  clerks  but 
one  ;  so  that  if  the  secretary  were  to  be  allowed  his  present  salary 
of  £2,000,  for  which  no  good  reason  can  be  given,  while  other 
heads  of  department  receive  but  §1333  33,  the  expences  of  that} 
office  would  amount  to  no  more  than  §2,000  tor  himself,  §1,000 
fora  clerk,  and  §500  lor  rent  and  contingencies,  in  ait  say  §3,500, 
which  deducted  from  §6,136,  leaves  a  saving  of  -  §2,6 

Comptroller’s  salary,  clerk  hire,  &c,  save  as  per 

register  general’s  report  of  December,  1806,  -  4,379 

Receiver’s  ditto  ditto  per  ditto  2,933 

. rent,  fuel,  stationary,  &c.  out  of  vitw  (supposed)  4C  0 

Rolls  office  fees,  contingencies,  and  rent  (supposed)  3,000 
Deduct  the  salaries  of  two  additional  clerks  given 

to  the  secretary  of  the  land  office,  -  1,000 

Annually  saved  under  reform  of  law,  -  12v  48 

If  the  constitution  ere  amended,  so  as  that  the  judiciary  officers 
should  hold  their  commissions  for  limited  periods,  then  impeach¬ 
ments  would  scarcely  be  known  ;  the  meeting  ot  the  legislature 
might  be  put  off  until  the  holidays  were  over,  which  some  ol  the 
members  celebrate  ;  say  until  about  the  middle*  of  January;  one 
third  of  the  time  the  session  now  generally  consumes,  would  be 
cut  off,  anti  consequently  one  third  of  the  expence  saved. 

The  legislative  expence  for  about  four  months,  amounts  annu¬ 
ally  to  , . !  §60,000 

FI 


o 


(  53  ) 


Say  of  that  sum  under  reform— of  the  constitution, 
saved,  -  -  ... 

— And  under  reform  of  law,  about 


— E  nder  both,  annually  saved 


essay  XVIII. 

7’IIE  DU'7'T  OF  THE  PEOPLE  TO  THEMSELVES . 

CAN  we  find  reasonable  men  in  the  state,  who  are  against  a 
reform  under  law,  that  would  annually  save  SI 2,000,  and  the  pub¬ 
lic  business  be  as  well  done,  or  better  than  at  present.  This  reform 
might  be  made  without  touching  the  constitution — without  agitating 
our  minds  with  the  fear  of  ourselves.  AH  classes  that  are' honest 
could  unite  ;  it  is  the  interest  of  the  people.  The  democrats  want 
a  constitutional  reform ;  but  a  reform  under  law,  would  remove 
part  of  the  existing  evils,  and  in  nine  or  ten  years  save  at  least 
SI 00,000..  Those  of  any  party  who  will  oppose  it,  must  either  be 
blind  partizans,  or  themselves  or  friends  interested  in  the  salaries 
°\  ^kuses,  and  Care  not  how  much  the  people  are  ground  by  taxes, 
which  will  some  time  have  to  be  collected  to  support  an  expensive 
system.  r 

I  .Ci  me  funds  of  the  state  consisting  of  dividends  from  bank 
stock,  produce  of  the  land  offices ;  auction  duties,  &c.  which  all 
fluctuate,  and  in  case  of  war  the  most  material  might  fail ;  the  peo¬ 
ple  must  then  be  saddled  with  a  tax  of  one  hundred  and  fifty  thou¬ 
sand  dollars  annually,  besides  the  cost  of  collection,  to  keep  the 
government  in  motion. 

Although  many  are  anxious  for  a  constitutional  reform,  yet  it 
ought  not  to  take  place,  until  a  majority  of  the  people  shall  be 
convinced  of  its  utility. 

It  must  have  its  first  operation  in  the  legislative  body,  being  a  legiti¬ 
mate  delegation  from  all  parts  of  the  state,  and  the  only  place  under 
tne  present  system,  where  the  people  can  originate  it ;  thev  there¬ 
fore  should  elect  such  members  as  are  of  their  own  opinion,  to 

bring  it  about  in  as  moderate,  easy,  and  prudent  a  manner  as  pos¬ 
sible.  -  l 

Lhat  it  will  be  done  without  noise  cannot  be  expected.  There 
are  too  many  who  have  wormed  themselves  into  power,  without 
principle,  that  would  draw  the  last  cent  from  the  public,  to  sup¬ 
port  themselves. there.  Such  will  make  a  noise  to  the  last,  rather 
than  suffer  any  improvement.  But  many  honest  and  disinterested 
men.  who  cling  to  the  constitution  for  fear  the  people  by  a  con- 
^  ention  w  ould  destroy  themselves,  ought  on  their  own  principles 
to  exert  themselves,  to  reform  the  law's,  so  as  to  remove  some  of  the 
pi  e\  ailing  e\  ils,  and  thereby  prevent  a  convention  as  long  as  they  can. 


20,0©e 

12,339 


§32,339 


C  59  ) 


When  the  convention  was  called  in  1790,  it  was  done  too  hasti¬ 
ly*  It  was  not  done  in  the  manner  pointed  cut  by  the  constitution 
of  seventy-six  ;  neither  were  the  majority  of  the  people  satisfied  with 
the  change.  They  acquiesced.  It  has  answered  the  expectation 
of  its  friends  ;  it  has  founded  an  aristocracy.  It  has  exceeded  the 
expectation  of  its  enemies  ;  it  has  produced  greater  evils  than  they 
conjectured. 

The  aristocrats  raised  the  cry  of  perjury  against  the  assembly 
for  expressing  an  opinion  as  assemblymen — for  saying  that  the 
constitution  was  defective,  and  intimating  that  as  soon  as  a  suffi¬ 
cient  number  of  the  citizens  petitioned  for  a  reform,  steps  might 
fee  taken  to  call  a  convention  to  alter  it. 

What  is  perjury  ?  It  is  swearing  falsely,  knowingly,  and  wilful¬ 
ly.  This  definition  is  short,  but  correct. 

The  assembly  of  1790  as  well  as  of  1804,  had  sworn  to  sup¬ 
port  the  constitution — that  is,  whenever  they  were  to  make  laws 
under  it,  the  lawrs  should  correspond  with  the  principles  it  con¬ 
tained.  But  in  both  instances  they  believed  that  the  constitutions 
were  inconvenient  and  ought  to  be  amended. 

In  1790  they  invited  their  constituents  to  send  delegates  to 
convention  to  rectify  the  evils.  They  did  not  violate  the  previsi¬ 
ons,  by  passing  laws  in  hostility  knowingly  ;  this  would  have  been 
perjury. 

They  w  ere  sworn— —how  ?  Not  to  support  the  constitution  for 
ever,  good  or  bad.  They  never  swore  they  would  be  silent  as  to 
its  defects  ;  it  would  have  been  absurd  ;  it  would  have  been  swear¬ 
ing  to  be  false  to  themselves,  and  to  the  people. 

,  Swearing  to  things  as  facts  which  never  took  place,  is  perjury. 
Swearing  to  support  an  opinion,  even  that  the  constitution  is  good,' 
and  afterward  discovering  its  defects,  and  endeavouring  to  alter  it, 
is  not  perjury.  The  constitution,  as  to  its  perfection,  being  found¬ 
ed  on  opinion,  and  that  opinion  changing ;  an  oath  founded  upon 
both  must  fall ;  it  has  no  foundation  in  virtue,  on  which  it  can  stand, 
and  falls  without  crime.  11  there  he  crime,  it  cannot  be  in  a  re¬ 
lease  from  an  improper  obligation ;  but  consists  in  having  entered 
into  it,  without  consideration. 

An  oath  is  a  solemnity  that  should  be  warily  entered  into  and 
when  it  is  used  to  establish  the  belief  of  facts  which  never  took 
place,  it  is  perjury  and  an  abominable  crime.  But  if  an  oath  be 
taken  to  support  a  principle  founded  on  opinion,  as  soon  as  that  opi¬ 
nion  is  charged,  a  recantation  becomes  necessary  ;  it  would  be  cri? 
minality  to  continue  in  error  a  single  moment. 

Sundry  men  bound  themselves  under  oath,  neither  to  eat  nor  to 
drink  until  they  had  killed  Paul.  Was  it  perjury,  if  after  they  saw  the 

evil  of  the  obligation,  they  released  themselves  from-its  perform¬ 
ance. 

.  ^  rn embers  of  assembly  in  1805,  sawr  defects  in  the  constitu¬ 
tion — evils  had  been  experienced  for  years,  and  they  candidly  ex¬ 
pressed  an  opinion.  Had  they  been  corrupt,  they  would  not  have 
acted  openly  and  so  modestly.  They  expressed  an  opinion,  mid 


(  60  ) 


left  it  as  an  inoperative  principle  upon  record,  to  be  brought  into 
operation,  when  the  people  should  think  proper 

Perjury  always  implies  an  oath  in  support  of  known  falshood,  or 
unknown  facts,  independent  of  opinion.  To  know  a  fact,  and  con¬ 
firm  it  solemnly  upon  oath  is  not  perjury  ;  but  to  swear  to  facts  not 
known,  whether  true  or  false,  is  perjury  in  conscience,  because 
they  are  sworn  to  be  true,  without  any  knowlege  of  the  fact. 

In  mere  matters  of  opinion,  as  it  respects  the  future  ;  when 
opinions  change,  the  obligation  ceases  ;  for  it  would  be  criminal  to 
act  contrary  to  conscience.  How  else  could  the  revolutionary  pa¬ 
triots,  many  of  whom  were  virtuous  and  religious,  who  had  been 
sworn  to  support  the  king  before  independence,  have  afterwards 
opposed  his  measures  and  the  measures  of  his  ministry,  and  revolt¬ 
ed  from  under  his  government  ?  How  else  could  the  officers  and 
the  people,  who  were  bound  on  oath  to  support  the  constitution  of 
seventy-six,  have  set  it  aside,  and  established  the  constitution  of 
1790,  and  continued  innocent?  The  tories  and  the  disaffected 
attached  to  the  crown,  to  aid  ihe  king,  cried  perjury  in  seventy-six, 
just  as  the  enemies  of  reform  have  lately  done. 

An  oath  is  indeed  solemn  and  sacred.  It  is  calling  the  father  of 
the  universe — the  great  Jehovah,  on  whom  we  depend  for  protec¬ 
tion  and  salvation,  to  witness  our  honesty  in  the  declaration  of  truth, 
in  relation  to  facts  we  affirm ;  and  resting  salvation  upon  our  vera¬ 
city.  But  in  not  properly  considering  the  difference  between  facts 
and  opinions,  and  the  application  of  an  oath  to  either  or  both,  unea¬ 
siness  in  the  minds  of  a  few  honest  and  good  men  has  arisen,  and 
given  room  for  extending  the  clamours  of  the  designing  and 
vicious. 

But  every  citizen  should  keep  in  mind,  that  the  denial  of  the 
right  to  alter  the  constitution  now  is  a  denial  of  the  right  for  ever. 
That  if  it  is  true  now,  it  was  true  always,  and  that  the  revolution 
of  1776,  was  a  wrong  and  a  disgrace ,  and  not  a  right  and  a  glory. 

To  deny  the  right  to  reform  or  correct  defects  in  the  constitu¬ 
tion,  is  in  fact  to  say  the  people  have  no  rights. 

That  the  people  are  their  own  worst  enemies. 

That  the  sovereignty  of  the  people  is  ideal,  and  not  real,  and 
gees  at  once  to  perpetuate  and  never  to  correct  abuses. 


\ 


FROM 


ALEXANDER  HAMILTON, 


CONCERNING 


THE  PUBLIC  CONDUCT  AND  CHARACTER 


OF 


JOHN  ADAMS,  Esq. 

% 

PRESIDENT  OF  THE  UNITED  STATES. 


NEW-YORK : 

Printed  for  John  Lang ,  by  George  F»  Hopkins . 


1800. 

PHILADELPHIA: 

Re-printed  pro  bono  publico. 


. 


ri.  <■*  -  -  ^  . 


,  .a  ...a  .  ; ...  ■,  . :  >  .  ...  i  ;;<U  l 


to 


m:l  i ’/.']•  >,  c.i  ;  :i;i  r  »o  itcKftiK&ft'i 


: 

V  VfrM.  .  .13  .0  ,0'  :■ 


>  i 

?TJ  aMI  H 

■ 


= 


LETTER. 


SIR, 

Some  of  the  warm  personal  friends  of  Mr.  Adams 
are  taking  unwearied  pains  to  disparage  the  motives  of  those 
Federalists,  who  advocate  the  equal  support  of  Gen.  Pinck¬ 
ney,  at  the  approaching  election  of  President  and  Vice- 
President.  They  are  exhibited  under  a  variety  of  aspects 
equally  derogatory.  Sometimes  they  are  versatile,  factious 
spirits,  who  cannot  be  long  satisfied  with  any  chief,  however 
meritorious : — Sometimes  they  are  ambitious  spirits,  who 
can  be  contented  with  no  man  that  will  not  submit  to  be  go¬ 
verned  by  them: — Sometimes  they  are  intriguing  partisans 
of  Great-Britain,  who,  devoted  to  the  advancement  of  her 
views,  are  incensed  against  Mr.  Adams  for  the  independent 
impartiality  of  his  conduct. 

In  addition  to  a  full  share  of  the  obloquy  vented  against 
this  description  of  persons  collectively,  peculiar  accusations 
have  been  devised,  to  swell  the  catalogue  of  my  demerits. 
Among  these,  the  resentment  of  disappointed  ambition, 
forms  a  prominent  feature.  It  is  pretended,  that  had  the 
President,  upon  the  demise  of  General  Washington,  ap¬ 
pointed  me  Commander  in  Chief,  he  would  have  been,  in 
my  estimation,  all  that  is  wise,  and  good  and  great. 

It  is  necessary,  for  the  public  cause,  to  repel  these  slan¬ 
ders  ;  by  stating  the  real  views  of  the  persons  who  are  calum¬ 
niated,  and  the  reasons  of  their  conduct. 

In  executing  this  task,  with  particular  reference  to  mv- 
self,  I  ought  to  premise,  that  the  ground  upon  which  I  stand, 


is  different  from  that  of  most  of  those  who  are  confounded 
wtth  me  as  in  pursuit  of  the  same  plan.  While  our  object 
is  common,  our  motives  are  variously  dissimilar.  A  part 
wed  affected  to  Mr.  Adams,  have  no  other  wish  than  to  take’ 
a  double  chance  against  Mr.  Jefferson.  Another  part, 
feeling  a  diminution  of  confidence  in  him,  still  hope  that 
*  e  general  tenor  of  his  conduct  will  be  essentially  right. 
Few  go  as  far  in  their  objections  as  I  do.  Not  de¬ 
nying  to  Mr.  Adams  patriotism  and  integrity,  and  even  ta¬ 
lents  of  a  certain  kind,  I  should  be  deficient  in  candor,  were 
I  to  conceal  the  conviction,  that  he  does  not  possess  the  ta¬ 
lents  adapted  to  the  Administration  of  Government,  and  that 
there  are  great  and  intrinsic  defects  in  his  character,  which 
unfit  him  for  the  office  of  Chief  Magistrate. 

To  give  a  correct  idea  of  the  circumstances  which  have 
gradually  produced  this  conviction,  it  may  be  useful  to  re- 
trospect  to  an  early  period. 

I  was  one  of  that  numerous  class  who  had  conceived  a 
high  veneration  for  Mr.  Adams,  on  account  of  the  part  he 
acted  in  the  first  stages  of  our  revolution.  My  imagination 
ad  exalted  him  to  a  high  eminence,  as  a  man  of  patriotic, 
bold, profound,  and  comprehensive  mind.  But  in  the  progress 
o  the  war,  opinions  were  ascribed  to  him,  which  brought 
mto  question,  with  me,  the  solidity  of  his  understanding 
He  was  represented  to  be  of  the  number  of  those  who  fa- 
vored  the  enlistment  of  our  troops  annually,  or  for  short 
periods,  rather  than  for  the  term  of  the  war;  a  blind  and 
m  atuated  policy,  directly  contrary  to  the  urgent  recom¬ 
mendation  of  General  Washington,  and  which  had  nearly 
proved  the  rum  of  our  cause.  He  was  also  said  to  have 
advocated  the  project  of  appointingyearly  anew  Command, 
er  of  the  Army;  a  project  which,  in  any  service,  is  likely  to 
be  attended  with  more  evils  than  benefits;  but  which,  in 

I 

ours, 


5 


ours,  at  the  period  in  question,  was  chimerical,  from  the 
want  of  persons  qualified  to  succeed,  and  pernicious,  from 
the  peculiar  fitness  of  the  officer  first  appointed,  to  strength¬ 
en,  by  personal  influence,  the  too  feeble  cords  which  bound 
to  the  service,  an  ill-paid,  ill-clothed,  and  undisciplined  sol 

diery. 

It  is  impossible  for  me  to  assert,  at  this  distant  day,  that 
these  suggestions  were  brought  home  to  M*r.  Adams  in 
such  a  manner  as  to  ascertain  their  genuineness ;  but  I  dis¬ 
tinctly  remember  their  existence,  and  my  conclusion  from 
them  ;  which  was,  that,  if  true,  they  proved  this  gentleman 
to  be  infected  with  some  visionary  notions,  and  that  he  was 
far  less  able  in  the  practice,  than  in  the  theory,  of  politics. 

I  remember  also,  that  they  had  the  effect  of  inducing  me  to 
qualify  the  admiration  which  I  had  once  entertained  for 
him,  and  to  reserve  for  opportunities  of  future  scrutiny,  a 
definitive  opinion  of  the  true  standard  of  his  character. 

In  this  disposition  I  was,  when  just  before  the  close  of 
the  war,  I  became  a  member  of  Congress. 

The  situation  in  which  I  found  myself  there,  was  far 
from  being  inauspicious  to  a  favourable  estimate  of  Mr. 

Adams. 

Upon  my  first  going  into  Congress,  I  discovered  symp¬ 
toms  of  a  party  already  formed,  too  well  disposed  to  subject 
the  interests  of  the  United  States  to  the  management  of 
France.  Though  I  felt,  in  common  with  those  who  had 
participated  in  our  Revolution,  a  lively  sentiment  of  good 
will  towards  a  power,  whose  co-operation,  however  it  was 
and  ought  to  have  been  dictated  by  its  own  interest,  had 
been  extremely  useful  to  us,  and  had  been  afforded  m  a  libe¬ 
ral  and  handsome  manner  ;  yet,  tenacious  of'  the  real  inde¬ 
pendence 


6 


“f&idsn  enr*n!!SS,*<^rep0"d'“,“ 

complaisance  to  foreign  DO  part-v  actuated  by  an  undue 

resist  this  bias  in  our  affY  ei"’'  ^  1  reso,vecI  at  once  to 
the  chief  cause  of  the  persecudo50^0”’  "'hich  ^  been 
subsequent  stages  of  my  political  life  '6  ^ 

Among  the  fruits  of  the  bias  Th* 
celebrated  instructions  to  our  Com  •  were  *e 

°f  Ptace  with  Great-Britain;  which ‘notTl’  f°r  tPeatinS 

measures,  but  also  as  to  r  ’  y  as  to  Anal 

negotiations,  placed  them  in  a  Itate "of  d'^  Vrtermediate 
French  ministry  humilin**  /  ependence  on  the 

■>.«  i..«re»  .i  zir®-?,  “d  “•*'« 

able,  as  there  was  cause  to  suspect'  that  6XCeption- 

cardmal  points  of  the  fisheries  and  V"  ’  t0 *W° 
Missisippi,  the  policy  of  the  cabinet  oIv'T"  ^  ** 
accord  with  the  wishes  of  the  United  States 

The  Commissioners,  of  whom  Mr  A 

had  the  fortitude  to  break  through  the'fetem'h^h  ^ 

bud  upon  them  by  those  instructions  •  and  the  ^ 

believe,  that  by  doing  it  *u  . ,  .  ’  there  ls  reason  to 

with  Great-Britain  and 'i  C>  °*  acceIerated  the  peace 
preserved  our  faith’ with  France^  ^  Wh'Ie  they 

Yet  a  serious  attempt  was  made  to  oi  *  •  r 

a  formal  censure  of  their  conduct  Tfi  ^  Con^«a 

mstead  of  censure,  the  praise  ’  T  P‘  faded’ and 

jnstly  due  to  the  accomplishment  of  ^  W3S 

to  this  country,  bevond  th  3  ‘ Caty  advantageous 


The 


7 


The  principal  merit  of  the  negociation  with  Great-Bri- 
tain,  in  some  quarters,  has  beenbestowecl  upon  Mr.  Adams  ; 
but  it  is  certainly  the  right  of  Mr.  Jay,  who  took  a  lead  in 
the  several  steps  of  the  transaction,  no  less  honourable  to 
his  talents  than  to  his  firmness.  The  merit,  nevertheless, 
of  a  full  and  decisive  co-operation,  is  justly  due  to  Mr. 
A  DAMS. 

It  will  readily  be  seen,  that  such  a  course  of  things  was 
calculated  to  impress  me  with  a  disposition  friendly  to  Mr. 
Adams.  I  certainly  felt  it,  and  gave  him  much  of  my  con¬ 
sideration  and  esteem. 

But  this  did  not  hinder  me  from  making  careful  obser¬ 
vations  upon  his  several  communications,  and  endeavoring 
to  derive  xrom  them  an  accurate  idea  of  his  talents  and  cha¬ 
racter.  This  scrutiny  enhanced  my  esteem  in  the  main  for 
his  moral  qualifications,  but  lessened  my  respect  for  his  in¬ 
tellectual  endowments.  I  then  adopted  an  opinion,  which 
all  my  subsequent  experience  has  confirmed,  that  he  is  a 
man  oi  an  imagination  sublimated  and  eccentric  ;  propitious 
neithei  to  the  regular  display  of  sound  judgment,  nor  to 
steady  perseverance  in  a  systematic  plan  of  conduct;  and  I 
began  to  perceive  what  has  been  since  too  manifest,  that  to 
this  defect  are  added  the  unfortunate  foibles  of  a  vanity 

without  bouncis,  and  a  jealousy  capable  oi  discoloring  every 
object. 

Strong  evidence  of  some  traits  of  this  character,  is  to 
be  found  in  a  Journal  of  Mr.  Adams,  which  was  sent  by  the 
then  Secretary  of  Foreign  Affairs  to  Congress.  The  reading 
of  this  Journal,  extremely  embarrassed  his  friends,  espe¬ 
cially  the  delegates  oi  Massachusetts;  who,  more  than 
once,  interrupted  it,  and  at  last,  succeeded  in  putting  a  stop 
to  it,  on  the  suggestion  that  it  bore  the  marks  of  a  private 

and 


*'OTD 


8 


and  confidential  paper,  which,  by  some  mistake,  had  gotten 
into  its  present  situation,  and  never  could  have  been  de¬ 
signed  as  a  public  document  for  the  inspection  of  Congress. 
The  good  humor  of  that  body  yielded  to  the  suggestion. 

The  particulars  of  this  Journal  cannot  be  expected  to 
have  remained  in  my  memory — but  I  recollect  one  which 
may  serve  as  a  sample.  Being  among  the  guests  invited  to 
dine  with  the  Count  de  Vergennes,  Minister  for  Foreign 
Affairs,  Mr.  Adams  thought  fit  to  give  a  specimen  of  Ame- 
lican  politeness,  by  conducting  Mffidame  de  Vergennes  to 
dinner ;  in  the  way,  she  was  pleased  to  make  retribution  in 
the  current  coin  of  French  politeness — by  saying  to  him, 
“  Monsieur  Adams ,  vous  etes  le  Washington  de  negocia - 
u  Stating  the  incident,  he  makes  this  comment  up¬ 

on  it:  u  These  people  have  a  very  pretty  knack  of  paying 
“  compliments.”  He  might  have  added,  they  have  also  a 
very  dexterous  knack  of  disguising  a  sarcasm. 

The  opinion,  however,  which  I  have  avowed,  did  not  pre¬ 
vent  my  entering  cordially  into  the  plan  of  supporting  Mr. 
Adams  for  the  office  of  Vice-President,  under  the  new 
Constitution.  I  still  thought  that  he  had  high  claims  upon 
the  public  gratitude,  and  possessed  a  substantial  worth  of 
character,  which  might  atone  for  some  great  defects.  In 
addition  to  this,  it  was  well  known,  that  he  was  a  favorite  of 
New-England,  and  it  was  obvious  that  his  union  with  Ge¬ 
neral  Washington  would  tend  to  give  the  government,  in 
its  outset,  all  the  strength  which  it  could  derive  from  the 
character  of  the  two  principal  magistrates. 

But  it  was  deemed  an  essential  point  of  caution  to  take 
care,  that  accident  or  an  intrigue  of  the  opposers  of  the  Go¬ 
vernment,  should  not  raise  Mr.  Adams,  instead  of  General 

Washington, 

*  Mr.  Adams,  you  are  the  Washington  of  negociation. 


9 


Washington,  to  the  first  place.  This,  every  friend  of  the 
Government  would  have  considered  as  a  disastrous  event  t 
as  well  because  it  would  have  displayed  a  capricious  opera¬ 
tion  of  the  system  in  elevating  to  the  first  station,  a  man  in¬ 
tended  for  the  second  ;  as  because  it  was  conceived  that  the 
incomparable  superior  weight  and  transcendant  popularity  of 
Gen.  Washington,  rendered  his  presence  at  the  head  of  the 
Government,  in  its  first  organization,  a  matter  of  primary 
and  indispensably  importance.  It  was  therefore  agreed 
that  a  few  votes  fhould  be  diverted  from  Mr.  Adams  to 
other  persons,  so  as  to  insure  tc  General  Washington  a 
plurality. 

Great  was  my  astonishment,  and  equally  great  my  re¬ 
gret,  when,  afterwards,  I  learned  from  persons  of  unques¬ 
tionable  veracity,  that  Mr.  Adams  had  complained  of  un¬ 
fair  treatment,  in  not  having  been  permitted  to  take  an  equal 
chance  with  General  W ashington,  by  leaving  the  votes  to 
an  uninfluenced  current. 

The  extreme  egotism  of  the  temper,  which  could  blind 
a  man  to  considerations  so  obvious  as  those  that  had  recom¬ 
mended  the  course  pursued,  cannot  be  enforced  by  my  com¬ 
ment.  It  exceeded  all  that  I  had  imagined,  and  fiiewcd,  in 
too  strong  a  light,  that  the  vanity  which  I  have  ascribed  to 
him,  existed  to  a  degree  that  rendered  it  more  than  a  harm¬ 
less  foible. 

* 

Mr.  Adams  was  elected  Vice-President.  His  public 
conduct,  in  that  station,  was  satisfactory  to  the  friends  of 
the  Government,  though  they  were  now  and  then  alarmed 
by  appearances  of  some  eccentric  tendencies. 

It  is,  in  particular,  a  tribute  due  from  me,  to  acknow¬ 
ledge,  that  Mr.  Adams,  being  in  quality  of  Vice-President, 
Cx  officio,  one  of  the  Trustees  of  the  Sinking  Fund,  I  ex- 

b  pericnccd 


10 


perienced  from  him  the  most  complete  support ;  which  wa£ 
the  more  gratifying  to  me,  as  I  had  to  struggle  against  the 
systematic  opposition  of  Mr.  Jefferson,  seconded  occa¬ 
sionally  by  Mr.  Randolph.  Though  it  would  be  an  ill 
compliment  to  Mr.  Adams,  not  to  presume  that  the  sup¬ 
port  which  he  gave  me,  was  the  diftate  of  his  stense  of  the 
puolic  intei  est  j  }et,  so  cordial  and  useful  a  co-operation,  at 
a  moment  when  1  was  assailed  with  all  the  weapons  of  par¬ 
ty  rancor,  won  from  me  an  unfeigned  return  of  the  most 
amicable  sentiments. 

I  lost  no  opportunity  of  combating  the  prejudices  indus¬ 
triously  propagated  against  him  by  his  political  enemies  ; 
and,  for  a  considerable  time,  went  quite  as  far  as  candor 
would  permit,  to  extenuate  the  failings  which  more  and 
more  alarmed  and  dissatisfied  his  friends. 

The  epoch  at  length  arrived,  when  the  retreat  of  Gene¬ 
ral  Washington  made  it  nscelTaryto  fix  upon  a  successor. 
By  this  time,  men  of  principal  influence  in  the  Federal  Par- 
„  ty,  whose  situation  had  led  them  to  an  intimate  acquaint¬ 
ance  with  Mr.  Adams’s  charafter,  began  to  entertain  seri¬ 
ous  doubts  about  his  fitness  for  the  station ;  yet,  his  pre¬ 
tensions,  in  several  respects,  were  so  strong,  that  after  ma¬ 
ture  reflection,  they  thought  it  better  to  indulge  their  hopes 
than  to  listen  to  their  fears.  To  this  conclusion,  the  desire 
of  preserving  harmony  in  the  Federal  Party,  was  a  weighty 
inducement.  Accordingly  it  was  determined  to  sunport 
Mr.  Adams  for  the  Chief  Magistracy. 

It  was  evidently  of  much  consequence  to  endeavour  to 
have  an  eminent  Federalist  Vice-President.  Mr.  Thomas 
Pinckney,  of  South  Carolina,  was  selected  for  this  purpose. 
This  gentleman,  too  little  known  in  the  North,  had  been  all 
h:s  life  time  distinguifhed  in  the  South,  for  the  mildness 
and  amiableness  of  his  manners,  the  rectitude  and  purity  of 

his 


n 


iiis  morals,  and  the  soundness  and  correctness  of  his  under- 
standing,  accompanied  by  a  habitual  discretion  and  sell- 
command,  which  has  often  occasioned  a  parallel  to  be  drawn 
between  him  and  the  venerated  Washington.  In  addition 
to  these  recommendations,  he  had  been,  during  a  critical  pe¬ 
riod,  our  Minister  at  the  Court  of  London,  and  recently  En¬ 
voy  Extraordinary  to  the  Court  of  Spain  ;  and  in  both  these 
trusts,  he  had  acquitted  himself  to  the  satisfaction  of  all  par¬ 
ties.  With  the  Court  of  Spain  he  had  effected  a  Treaty, 
which  removed  all  the  thorny  subjects  of  contention,  that 
had  so  long  threatened  the  peace  of  the  two  countries,  and 
stipulated  for  the  United  States,  on  their  Southern  frontier, 
and  on  the  Missisippi,  advantages  of  real  magnitude  and  im¬ 
portance. 

f  * 

Well-informed  men  knew  that  the  event  of  the  Elec¬ 
tion  was  extremely  problematical  ;  and  while  the  friends  of 
Mr.  Jefferson  predicted  his  success  with  sanguine  confi¬ 
dence,  his  opposers  feared  that  he  might  have  at  least  an 
equal  chance  with  apy  F ederal  Candidate. 

To  exclude  him,  was  deepied,  by  the  Federalists,  a  pri¬ 
mary  object.  Those  of  them  who  possessed  the  best  means 
of  judging,  were  of  opinion  that  it  was  far  less  important, 
whether  Mr.  Adams  or  Mr.  Pinckney  was  the  successful 
Candidate,  than  that  Mr.  Jefferson  ihould  not  be  the  per¬ 
son  ;  and  on  this  principle,  it  was  understood  among  them, 
that  the  two  first  mentioned  gentlemen  ihould  be  equally 
supported  ;  leaving  to  casual  accessions  of  votes  in  favor  of 
the  one  or  the  other,  to  turn  the  scale  between  them. 

In  this  plan  I  united  with  good  faith  ;  in  the  resolution, 
to  which  I  scrupulously  adhered,  of  giving  to  each  Candidate 
an  equal  support.  This  was  done,  wherever  my  influence 
extended;  as  was  more  particularly  manifested  in  the  State 

of  New- York,  where  all  the  Electors  were  my  warm  per¬ 
sonal 


sonal  or  political  friends,  and  all  gave  a  concurrent  vote  for 
the  two  Federal  Candidates. 

It  is  true  that  a  faithful  execution  of  this  plan  would  have 
given  Mr.  Pinckney  a  somewhat  better  chance  than  Mr. 
Adams  ;  nor  snail  it  be  concealed  that  an  issue  favor- 
aoie  to  the  former  would  not  have  been  disagreeable  to  me 
as  indeed  I  declared  at  the  time,  in  the  circles  of  my  confiden¬ 
tial  friends.*  My  position  was,  that  if  chance  sould  de¬ 
cide  in  favor  of  Mr.  Pinckney,  it  probably  would  not  be  a 
misfortune  ;  since  he,  to  every  essential  qualification  for  the 
office,  added  a  temper  far  more  discreet  and  conciliatory 
than  that  of  Mr.  Adams. 

This  disposition,  on  my  part,  at  that  juncture,  proves, 
at  least,  that  my  disapprobation  of  Mr.  Adams  has  not  ori¬ 
ginated  in  the  disappointment,  to  which  it  has  been  uncan- 
didly  attributed.  No  private  motive  could  then  have  en¬ 
tered  into  it.  Not  the  least  collision  or  misunderstanding 

had  ever  happened  between  that  gentleman  and  myself _ on 

the  contrary,  as  I  have  already  stated,  I  had  reason  indivi¬ 
dually  to  be  pleased  with  him. 

No  :  The  considerations  which  had  reconciled  me  to  the 
success  of  Mr.  Pinckney,  were  of  a  nature  exclusively  pub¬ 
lic.  They  resulted  from  the  disgusting  egotism,  the  dis¬ 
tempered  jealousy,  and  the  ungovernable  indiscretion  of  Mr. 
Adams’s  temper,  joined  to  some  doubts  of  the  correctness 
of  his  maxims  of  Administration.  Though  in  matters  of 
Finance  he  had  acted  with  the  Federal  Party;  yet  he  had, 
more  than  once,  broached  theories  at  variance  with  his  prac¬ 
tice.  And  in  conversation  he  repeatedly  made  excursions 
in  the  field  of  foreign  politics,  which  alarmed  the  friends 
of  the  prevailing  system. 

The 

*  I  appeal  particularly  to  Lt.  Governor  \  an  Rensselaer  and 
R,  T povp,  E/c. 


(  13  ) 


The  plan  of  giving  equal  support  to  the  two  Federal  Can¬ 
didates,  was  not  pursued.  Personal  attachment  for  Mr. 
Adams,  especially  in  the  New-Enghmd  States,  caused  a 
number  of  the  votes  to  be  withneld  from  My.  Pincknev, 
and  thrown  away.  The  result  was,  1  nat  Mr.  Adams  was 
eiecled  President  by  a  majority  of  two  votes,  and  Mr,  Jef¬ 
ferson  Vice-President. 


This  issue  demonstrated  the  wisdom  of  the  plan  which 
had  been  abandoned,  and  hosv  greatly,  in  departing  from  it, 
the  cause  had  been  sacrificed  to  the  man.  But  for  a  sort  of 
miracle,  the  departure  would  have  made  Mr.  Jefferson 
President.  In  each  of  the  States  of  Pennsylvania,  Virginia 
and  North-Carolina,  Mr.  Adams  had  one  vote.  In  the  two 
latter  States,  the  one  vote  was  as  much  against  the  stream  of 
popular  prejudice,  as  it  was  against  the  opinions  of  the  other 
Electors.  The  firmness  of  the  individuals  who  separated 
from  their  colleagues,  was  so  extraordinary,  as  to  have  been 
contrary  to  all  probable  calculation.  Had  only  one  of  them 
thrown  his  vote  into  the  other  scale,  there  would  have  been 
an  equality,  and  no  election.  Had  two  done  it,  the  choice 
would  have  fallen  upon  Mr.  Jefferson, 

No  one,  sincere  in  the  opinion  that  this  gentleman  was 
an  ineligible  and  dangerous  Candidate,  can  hesitate  in  pro¬ 
nouncing,  that  in  dropping  Mr.  Pinckney,  too  much  was 
put  at  hazard  :  and  that  those  who  promoted  the  other  course, 
acted  with  prudence  and  propriety. 


It  is  a  fact,  which  ought  not  to  be  forgotten,  that  Mr. 
Adams,  who  had  evinced  discontent,  because  he  had  not 
been  permitted  to  take  an  equal  chance  with  General  Wash¬ 
ington,  was  enraged  with  all  those  who  had  thought  that 
Air.  Pinckney  ought  to  have  had  an  equal  chance  with  him. 
But  in  this  there  is  perfect  consistency.  The  same  turn  of 
temper  Is  the  solution  of  the  displeasure  in  both  cases. 


It 


It  is  to  this  circumstance  of  the  equal  support  of  Mr? 
PiNCKNEi,  that  we  are  in  a  great  measure  to  refer  the  seri¬ 
ous  schism  which  has  since  grown  up  in  the  Federal  Party. 

Mr..  Adams  never  could  forgive  the  men  who  had  been 
engaged  in  plan  ;  thougn  it  embraced  some  of  his  most 
partial  admirers.  He  has  discovered  bitter  animosity  against 
several  of  them.  Against  me,  his  rage  has  been  fo  vehement, 
as  to  have  caufed  him  more  than  once,  to  forget  the  deco¬ 
rum,  which,  in  his  situation,  ought  to  have  been  an  invio¬ 
lable  law.  It  will  not  appear  an  exaggeration  to  thofe  who 
have  studied  his  character,  to  fuppofe  that  he  is  capable  of 
being  alienated  from  a  system  to  which  he  has  been  at¬ 
tached,  because  it  is  upheld  by  men  whom  he  hates. 
How  large  a  lhare  this  may  have  had  in  some  recent  aber¬ 
rations,  cannot  easily  be  determined. 


Occurrences  which  have  either  happened  or  come  to 
light  since  the  election  of  Mr.  Adams  to  the  Presidency, 
confirming  my  unfavorable  forebodings  of  his  character,  have 
given  new  and  decisive  energy,  in  my  mind,  to  the  senti¬ 
ment  of  his  unfitness  for  the  station. 


The  letter  which  has  just  appeared  in  the  public  prints, 
written  by  him,  while  Vice-President,  to  Tench  Coxe,  is 
of  itself  conclusive  evidence  of  the  justness  of  this  senti¬ 
ment.  It  is  impossible  to  speak  of  this  transaction  in  terms 
suited  to  its  nature,  without  losing  sight  that  Mr.  Adams  is 
President  of  the  United  States. 

This  letter  avows  the  suspicion ,  that  the  appointment  of 
Mr.  Pinckney  to  the  Court  of  London  had  been  procured 
or  promoted  by  British  Influence.  And  considering  the  pa¬ 
rade  with  which  the  story  of  the  Duke  of  Leeds  is  told,  it  is 
fair  to  consider  that  circumstance  as  the  principal,  if  not  the 
sole,  ground  of  the  odious  and  degrading  suspicion. 


(  15  ) 


Let  any  man  of  candour  or  knowledge  of  the  world  pro¬ 
nounce  on  this  species  of  evidence. 

It  happened  unfortunately  for  the  Pinckneys,  that,  while 
hoys,  and  long  before  our  revolution,  they  wrent  to  school 
writh  a  British  Duke,  who  was  afterwards  Minister  of  the 
British  Government  for  the  foreign  department.  I  his  in- 
discreet  Duke,  perhaps  for  no  better  reason  than  the  desire 
of  saying  something  to  a  parting  American  Minister,  and 
the  want  of  something  better  to  say,  divulges  to  him  the 
dangerous  secret,  that  the  two  Pinckneys  had  been  his 
class-mates,  and  goes  the  alarming  length  of  making  enquiry 
about  their  health.  From  this  it  is  sagaciously  inferred,  that 
these  gentlemen  have  u many  powerful  old  friends  inUnglandf 
and  from  this  again,  that  the  Duke  of  Leeds  (of  course  of 
the  number  of  these  old  friends)  had  procured  by  intrigue 
the  appointment  of  one  of  his  class-mates  to  the  Court  of 
London ;  or,  in  the  language  of  the  letter,  that  much  British 
influence  had  been  exerted  in  the  appointment. 

In  the  school  of  jealousy,  stimulated  by  ill-will,  logiclike 
this  may  pass  for  substantial ;  but  what  is  it  in  the  school 
of  reason  and  justice? 

Though  this  contaminating  connection  of  the  Pinckneys 
with  the  Dukeof  Leeds,  in  their  juvenile  years,  did  nothin- 
der  them  from  fighting  for  the  independence  of  their  native 
country  throughout  our  revolution ;  yet  the  supposition  is, 
that  the  instant  the  wrar  was  terminated,  it  transformed 
them  from  the  soldiers  of  liberty  into  the  tools  of  the  Bri¬ 
tish  Monarchy. 

But  the  hostility  of  the  Pinckneys  to  Mr.  Adams,  evi- 
denced  by  their  u  long  intrigue”  against  him,  oi  which  he 
speaks  in  the  letter,  is  perhaps  intended  as  a  still  stronger 

proof 


C  16  ) 

proof  of  their  devotion  to  Great-Britain — the  argument 
may  be  thus  understood.  Mr.  Adams  is  the  bulwark  of 
his  country  against  foreign  influence — The  batteries  of  eve¬ 
ry  foreign  power,  desirous  of  acquiring  an  ascendant  in  our 
affairs,  are  ol  consequence  always  open  against  him — and, 
the  presumption  therefore  must  be,  that  every  citizen  who 
is  his  enemy,  is  the  confederate  of  one  or  another  of  those 
foreign  powers. 

Let  us,  without  contesting  this  argument  of  self-love, 
examine  into  the  facts  upon  which  its  applicability  must 
depend. 

4. 

The  evidence  of  “  the  long  intrigue”  seems  to  be,  that 
the  family  ofthe  Pinckney’s  contributed  tolimitthe  dut*a- 
tion  of  Mr.  Adams’s  commission  to  the  Court  of  London 
to  the  term  of  three  years,  in  order  to  make  way  for  some 
of  themselves  to  succeed  him.  This,  it  must  be  confessed, 
was  a  long-sighted  calculation  in  a  government  like  ours. 

A  summary  ofthe  transaction,  will  be  the  best  comment 
on  the  inference  which  has  been  drawn. 

The  resolution  of  Congress  by  which  Mr.  Adams’s  com¬ 
mission  was  limited,  was  a  ganeral  one,  applying  to  the 
Commissions  of  all  Ministers  to  foreign  Courts.  When 
it  was  proposed  and  adopted,  it  is  certain  that  neither  of 
the  two  Pinckneys  was  a  member  of  Congress  ;  and  it  is 
believed  that  they  were  both  at  Charleston,  in  South  Caroli¬ 
na,  their  usual  place  of  abode,  more  than  eight  hundred 
miles  distant  from  the  seat  of  Government. 

But  they  had,  it  seems,  a  cousin,  Mr.  Chales  Pinck¬ 
ney,  who  was  in  Congress ;  and  this  cousin  it  was  who  mov¬ 
ed 


17 

ed  the  restrictive  resolution.  Let  us  enquire  who  seconded 
and  who  voted  for  it. 

It  was  seconded  by  Mr.  Howell,  a  member  from  Rhode 
Island,  the  very  person  who  nominated  Mr .  Adams  as  Minis - 
ter  to  GreaUBritain ,  and  was  voted  for  by  the  four  Eastern 
States,  with  New-York,  New-Jersy,  Maryland,  and  South 
Carolina.  Mr.  Gerry,  always  a  zealous  partisan  of  Mr. 
Adams,  was  among  the  supporters  of  the  resolution.  To 
make  out  this  to  be  a  machination  of  the  two  Pinckneys, 
many  things  must  be  affirmed : — First,  that  their  cousin 
Charles  is  always  subservient  to  their  views  (which 
would  equally  prove  that  they  have  long  been,  and  still  are, 
opposers  of  the  Federal  Administration:) — Second,  that 
this  cunning  wight  had  been  able  to  draw  the  four  Eastern 
States  into  his  plot,  as  well  as  New-York,  New- Jersey,  Ma¬ 
ryland,  and  South-Carolina : — Third,  that  the  Pinckneys 
could  foresee,  at  the  distance  of  three  years,  the  existence 
of  a  state  of  things  which  would  enable  them  to  reap  the 
fruit  of  their  contrivance. 

Would  not  the  circumstances  better  warrant  the  suspi¬ 
cion  that  the  resolution  was  a  contrivance  of  the  friends  of 
Mr.  Adams,  to  facilitate  in  some  way  his  election,  and 
that  Mr.  Pinckney  was  their  coadjutor,  rather  than  their 
prompter? 

But  the  truth  most  probably  is,  that  the  measure  was  a 
mere  precaution  to  bring  under  frequent  review  the  propri¬ 
ety  of  continuing  a  Minister  at  a  particular  Court,  and  to 
facilitate  the  removal  of  a  disagreeable  one,  without  the 
harshness  ox  formally  displacing  him.  In  a  policy  of  this 
sort,  the  cautious  maxims  of  New-England  would  very  na¬ 
turally  have  taken  a  lead. 

i 


G 


This 


IS 


1  hus  in  the  very  grounds  of  the  suspicion,  as  far  as  they 
appear,  we  find  its  refutation.  The  complete  futility  of  it 
'viil  now  be  illustrated  by  additional  circumstances. 

It  is  a  fact,  that  the  rigor  with  which  the  war  was  pro¬ 
secuted  by  the  British  armies  in  our  Southern  quarter, 
had  produced  among  the  friends  of  our  revolution  there, 
more  animosity  against  the  British  Government,  than  in  the 
other  parts  of  the  United  States :  and  it  is  a  matter  of  notori¬ 
ety  ,  in  the  same  quarter,  that  this  disposition  was  conspi¬ 
cuous  among  the  Pinckneys,  and  their  connections.  It 
may  oe  adaed,  that  they  were  likewise  knov/n  to  have  been 
attached  cO  the  biench  Revolution,  and  to  have  continued 
so,  till  long  after  the  appointment  of  Mr.  Thomas  Pinck¬ 
ney  to  the  Court  of  London. 

These  propensities  of  the  gentlemen,  were  certainly  not 
such  as  to  make  them  favourites  of  Great-Britain,  or  the  ap¬ 
pointment  of  one  of  them  to  that  Court,  an  object  of  parti¬ 
cular  solicitude. 

As  far  as  appeared  at  the  time,  the  idea  of  nominating 
Mr.  Thomas  Pinckney,  originated  with  the  then  Presi¬ 
dent  himself .  but  whatever  may  have  been  its  source,  it  is 
certain  that  it  met  the  approbation  of  the  whole  Admistra- 
tion,  Mr.  Jefferson  included.  This  fact  alone,  will  go 

iar  to  refute  the  surmise  of  a  British  agency  in  the  appoint, 
inent. 

Supposing,  that,  contrary  to  all  probability,  Great-Britain 
had  really  taken  some  unaccountable  fancy  for  Mr.  Pinck¬ 
ney,  upon  whom  w~as  her  influence  exerted? 

Had  tne  virtuous,  circumspect  Washington  been  ensnar¬ 
ed  in  her  insidious  toils?  Had  she  found  means  for  once 


to 


19 


to  soften  the  stem,  inflexible  hostility  of  Jefferson  ?  Had 
R  andolph  been  won  by  her  meretricious  caresses?  Had 
Knox,  the  uniform  friend  of  Mr.  Adams,  been  corrupted 
by  her  seducing  wiles  ?  Or  was  it  all  the  dark  work  of  the 
alien  Secretary  of  the  Treasury?  Was  it  this  arch  juggler, 
who  debauched  the  principles,  or  transformed  the  prejudi¬ 
ces,  of  Mr.  Pinckney;  who  persuaded  the  British  Gov¬ 
ernment  to  adopt  him  as  a  pliant  instrument;  who  artfully 
induced  the  President  to  propose  him  as  of  his  own 
selection;  who  lulled  the  zealous  vigilance  of  Jeffer¬ 
son  and  Randolph,  and  surprised  the  unsuspecting  frank¬ 
ness  of  Knox  ? 

But  when  the  thing  had  been  accomplished,  no  matter 
by  what  means,  it  was  surely  to  have  been  expected  that 
the  man  of  its  choice  would  have  been  treated  at  the  Couit 
of  London  with  distinguished  regard,  and  that  his  conduct 
towards  that  Court  would  have  been  marked,  if  not  by  some 
improper  compliances,  at  least  by  some  displays  of  extraoi- 
dinary  complaisance. 

Yet,  strange  as  it  may  appear,  upon  Mr.  Adams’s  hypo¬ 
thesis,  it  might  be  proved,  if  requisite,  that  neither  the  one 
nor  the  other  took  place.  It  might  be  proved  that,  far  from 
Mr.  Pinckney’s  having  experienced  any  flattering  distinc¬ 
tions,  incidents  not  pleasant  to  his  feelings,  had  occurred, 
and  that  in  the  discharge  of  his  official  functions,  he  had  ad¬ 
vanced  pretensions  in  favor  of  the  United  States,  from 
which,  with  the  approbation  of  the  then  Secretary  of  State, 
Mr.  Jefferson,  he  was  instructed  to  desist. 

What  will  iVIr.  Adams  or  his  friends  leply  to  all  these 
facts?  How  will  he  be  excused  for  indulging  and  declaring, 
on  grounds  so  frivolous,  a  suspicion  so  derogatory,  of  a 
man  so  meritorious — of  a  man  who  has  acted  in  a  manner  so 
unexceptionable  ? 

But 


20 


BtT  a  more  serious  question  remains:  How  will  Mr. 
Adams  answer  to  the  Government  and  to  his  Country,  for 
having  thus  wantonly  given  the  sanction  of  his  opinion  to 
the  worst  of  the  aspersions  which  the  enemies  of  the  Ad¬ 
ministration  have  impudently  thrown  upon  it?  Can  we  be 
surprised  that  such  a  torrent  of  slander  was  poured  out 
against  it,  when  a  man,  the  second  in  official  rank,  the  se¬ 
cond  m  the  favor  of  the  friends  of  the  Government,  stooped 
to  become  himself  one  of  it  calumniators? — It  is  peculiarly 
unlucky  for  Mr.  Adams  in  this  affair,  that  he  is  known  to  have 
c  esn-ed,  at  the  time,  the  appointment  which  was  given  to 

v'i  •PlNCKNEY'  The  President  declined  the  measure, 
thinking  that  it  was  compatible  neither  with  the  spirit  of 
the  constitution  nor  with  the  dignity  of  the  Government,  to 
designate  the  Vice-President  to  such  a  station. 

This  letter,  better  than  volumes,  developes  the  true,  the 
unfortunate  character  of  Mr.  Adams. 

The  remaining  causes  of  dissatisfaction  with  him  respect 
his  conduct  in  the  office  of  President;  which,  in  my  opinion, 

has  been  a  heterogeneous  compound  of  right  and  wrong’ 
of  wisdom  and  error.  6’ 

The  outset  was  distinguished  by  a  speech  which  his 
in  ends  lamented  as  temporizing.  It  had  the  air  of  a  lure 
lor  the  favor  of  his  opponents  at  the  expense  of  his  since¬ 
rity  :  but  being  of  an  equivocal  complexion,  to  which  no  pre- 
cise  design  can  be  annexed,  it  is  barely  mentioned  as  a  cir¬ 
cumstance,  which,  in  conjunction  with  others  of  a  more  po¬ 
sitive  tint,  may  serve  to  explain  character. 

It  is  in  regard  to  our  foreign  relations,  that  the  public 
measures  of  Mr.  Adams  first  attract  criticism. 


It 


21 


It  will  be  recollected  that  General  Pinckney,  the  brother 
ot  Thomas,  and  die  gentleman  now  supported  together  with 
Mr.  Adams,  had  been  deputed  by  President  Washington, 
as  successor  to  Mr.  Monroe,  and  had  been  refused  to  be 
received  by  the  French  Government  in  his  quality  of  Mini¬ 
ster  Plenipotentiary. 

This,  among  those  of  the  well-informed,  who  relt  a  just 
sensibility  for  the  honor  of  their  country,  excited  much  disgust 
and  resentment.  But  the  Opposition-Party,  ever  too  ready 
to  justify  the  French  Government  at  the  expense  of  their 
own,  vindicated  or  apologised  for  the  ill  treatment :  and  the 
mass  of  the  community,  though  displeased  with  it,  did  not 
appear  to  feel  the  full  force  of  the  indignity. 

As  a  final  effort  for  accomodation,  and  as  a  mean,  in  case 
of  failure,  of  enlightening  and  combining  public  opinion,  it 
was  resolved  to  make  another,  and  a  more  solemn,  experi¬ 
ment,  in  the  form  of  a  commission  of  three. 

i 

This  measure  (with  some  objections  to  the  detail) 
was  approved  by  ail  parties  ;  by  the  Antifederalists,  because 
they  thought  no  evil  so  great  as  the  rupture  with  France ; 
by  the  Federalists,  because  it  was  their  system  to  avoid  war 
with  every  power,  if  it  could  be  done  without  the  sacrifice  of 
of  essential  interests  cr  absolute  humiliation. 

Even  such  of  them  who  conceived  that  the  insults  of  the 
French  Government,  and  the  manifestation  of  its  ill  will, 
had  already  gone  far  enough  to  call  for  measures  of  vigor  ; 
perceiving  that  the  nation  was  not  generally  penetrated  with 
the  same  conviction,  and  would  not  support  with  zeal  mea¬ 
sures  of  that  nature,  unless  their  necessity  was  rendered 
still  more  apparent,  acquiesced  in  the  expediency  of  another 
mission.  1  hey  hoped  that  it  would  serve  either  to  compose 

the 


22 


the  differences  which  existed,  or  to  make  the  necessity  of 
resistance  to  the  violence  of  France,  palpable  to  every  good 
citizen. 

The  expediency  of  the  step  was  suggested  to  Mr.  Adams, 
through  a  Federal  channel,  a  considerable  time  before  he 
determined  to  take  it.  He  hesitated  whether  it  could  be 
done  after  the  rejection  of  General  Pinckney,  without  na¬ 
tional  debasement.  The  doubt  was  an  honorable  one  ;  it 
was  afterwards  very  properly  surrendered  to  the  cogent  rea¬ 
sons  which  pleaded  for  a  further  experiment. 

The  event  of  this  experiment  is  fresh  in  our  recollection. 
Our  Envoys,  like  our  Minister,  were  rejected.  Tribute  was 
demanded  as  a  preliminary  to  negociation.  To  their  im¬ 
mortal  honor,  though  France  at  the  time  was  proudly  tri¬ 
umphant,  they  repelled  the  disgraceful  pretension.  Ameri¬ 
cans  will  never  forget  that  General  Pinckney  was  a  mem¬ 
ber,  and  an  efficient  member,  of  this  Commission. 

This  conduct  of  the  French  Government,  in  which  it  is 
difficult  to  say,  whether  despotic  insolence  or  unblushing 
corruption  was  most  prominent  electrified  the  American 
people  with  a  becoming  indignation.  In  vain  the  partisans 
of  France  attempted  to  extenuate.  The  public  voice  was 
distinct  and  audible.  The  nation,  disdaining  so  foul  an 
overture,  was  ready  to  encounter  the  worst  consequences 
of  resistance. 

Without  imitating  the  flatterers  of  Mr.  Adams,  who, 
in  derogation  from  the  intrinsic  force  of  circumstances,  and 
from  the  magnanimity  of  the  nation,  ascribe  to  him  the 
whole  merits  of  producing  the  spirit  which  appeared  in  the 
community,  it  shall  with  cheerfulness  be  acknowledged, 
that  he  took  upon  the  occasion  a  manly  and  courageous  lead 

— that 


23 


— that  he  did  all  in  his  power  to  rouse  the  pride  of  the  na¬ 
tion — to  inspire  it  with  a  just  sense  of  the  injuries  and  outra¬ 
ges  which  it  had  experienced,  and  to  dispose  it  to  a  firm 
and  magnanimous  resistance ;  and  that  his  efforts  contribut¬ 
ed  materially  to  the  end. 

The  friends  of  the  Government  were  not  agreed  as  to 
ulterior  measures.  Some  were  for  immediate  and  un¬ 
qualified  war;  others  for  a  more  mitigated  course ;  the  dis¬ 
solution  of  treaties,  preparation  of  force  by  land  and  sea, 
partial  hostilities  of  a  defensive  tendency ;  leaving  to  France 
the  option  of  seeking  accommodation,  or  proceeding  to 
©pen  war.  The  latter  course  prevailed. 

Though  not  as  bold  and  energetic  as  the  other;  yet,  con¬ 
sidering  the  prosperous  state  of  French  affairs,  when  it  was 
adopted,  and  how  many  nations  had  been  appalled  and  pros¬ 
trated  by  the  French  Power — the  conduct  pursued  bore 
sufficiently  the  marks  of  courage  and  elevation  to  raise 
the  national  character  to  an  exalted  height  throughout  Eu¬ 
rope. 

Much  is  it  to  be  deplored  that  we  should  have  been  pre¬ 
cipitated  from  this  proud  eminence  without  necessity,  with¬ 
out  temptation. 

The  latter  conduct  of  the  President  forms  a  painful  con¬ 
trast  to  his  commencement.  Its  effects  have  been  directly 

the  reverse.  It  has  sunk  the  tone  of  the  public  mind _ it 

has  impaired  the  confidence  of  the  friends  of  the  Govern¬ 
ment  in  the  Executive  Chief — it  has  distracted  public  opin¬ 
ion — it  has  unnerved  the  public  councils — it  lias  sown  the 
seeds  of  discord  at  home,  and  lowered  the  reputation  of  the 
Government  abroad. — The  circumstances  which  preceded, 
aggravate  the  disagreeableness  of  the  results.  They  prove 

that 


24 


that  the  injudicious  tilings  which  have  been  acted,  were  not 
the  effects  ot  any  regular  plan,  but  the  fortuitous  emana¬ 
tions  of  momentary  impulses. 

The  session,  which  ensued  the  promulgation  of  the  dis¬ 
patches  of  our  Commissioners,  was  about  to  commence. 
->Ir.  Adams  arrived  at  Philadelphia  from  his  seat  at  Quin- 
cey.  The  tone  of  his  mind  seemed  to  have  been  raised, 
rather  than  depressed. 

It  was  suggested  to  him,  that  it  might  be  expedient  to 
insert  in  nis  Speech  oi  Congress,  a  sentiment  of  this  import : 
1  hat  after  the  repeatedly  rejected  advances  of  this  country, 
its  dignity  required  that  it  should  be  left  with  France  in  fu¬ 
ture  to  make  the  first  overture ;  that  if,  desirous  of  reconci¬ 
liation,  she  should  evince  the  disposition  bv  sending  a  Mi¬ 
nister  to  this  Government,  he  would  be  received  with  the 
respect  due  to  his  character,  and  treated  with  in  the  frank¬ 
ness  ot  a  sincere  desire  of  accommodation. 

The  suggestion  was  received  in  a  manner  both  indignant 

and  intemperate. 

ivIr.  Adams  declared  as  a  sentiment  which  he  had  adopt¬ 
ed  on  mature  reflection:—  That  if  France  should  send  a  Mi¬ 
nister  iQ-morrow ,  he  : would  order  him  back  the  day  after . 

So  imprudent  an  idea  was  easily  refuted.  Little  argu¬ 
ment  was  requisite  to  shew  that  by  a  similar  system  of  re¬ 
taliation,  when  one  Government  in  a  particular  instance  had 
reiused  the  Envoy  of  another,  nations  mightentail  upon  each 
other  perpetual  hostility;  mutually  barring  the  avenues  of 
explanation. 


V 


In 


25 


IN'  less  than  forty-eight  hours  from  this  extraordinary  sal¬ 
ly,  the  mind  of  Mr.  Adams  underwent  a  total  revolution- 
lie  resolved  not  only  to  insert  in  his  speech  the  sentiment 
which  had  been  proposed  to  him,  but  to  go  farther,  and  to 
declare,  that  if  France  would  give  explicit  assurances  of  re¬ 
ceiving  a  Minister  from  this  country,  with  due  respect,  he 
would  send  one. 

*  - 

In  vain  was  this  extension  of  the  sentiment  oppofed  by 
all  his  Ministers,  as  being  equally  incompatible  with  good 
policy,  and  with  the  dignity  of  the  nation— he  obstinately 
persisted,  and  the  pernicious  declaration  was  introduced. 

I  call  it  pernicious,  because  it  was  the  ground-work  o£ 
the  false  steps  which  have  succeeded. 

The  declaration  recommended  to  the  President  was  a 
prudent  one. 

The  measures  of  Congress,  by  their  mitigated  form, 
shewed  that  an  eye  had  been  still  kept  upon  pacification.  A. 
numerous  party  were  averse  from  war  with  France  at  any 
rate.  In  the  rest  of  the  community,  a  strong  preference  o£ 
honorable  accommodation  to  final  rupture  was  discernible, 
even  amidst  the  effusions  of  resentment. 

The  charges  which  he  had  exhibited  in  the  face  of  the 
world  against  the  French  government,  were  of  a  high  and 
disgraceful  complexion  *,  they  had  been  urged  with  much 
point  and  emphasis. 

To  give  an  opening  to  France,  to  make  conciliatory  pro¬ 
positions,  some  salve  for  her  pride  was  necessary  It  was 
also  necessary  she  should  be  assured  that  she  would  not  ex¬ 
pose  herself  to  an  affront  by  a  refufal  to  receive  the  agenc 

d  whoca 


i 


s# 


whom  she  might  employ  for  that  purpose.  The  declaration 
proposed  fulfilled  both  objects. 

It  was  likely  to  have  another  important  advantage.  It 
would  be  a  new  proof  to  the  American  people  of  the  mode¬ 
rate  and  pacific  temper  of  their  Government ;  which  would 
tend  to  preserve  their  confidence,  and  to  dispose  them  more 
and  more  to  meet  inevitable  extremities  with  fortitude  and 
without  murmurs. 

But  the  supplement  to  the  declaration  was  a  blameable 
excess.  It  was  more  than  sufficient  for  the  ends  to  be  an¬ 
swered.  It  waved  the  point  of  honor,  which  after  two  re¬ 
jections  of  our  Ministers,  required  that  the  next  Mission 
between  the  two  countries,  should  proceed  from  France. 
After  the  mortifying  humiliations  we  had  endured,  the  na¬ 
tional  dignity  demanded  that  this  point  should  not  be  de¬ 
parted  from  without  necessity.  No  such  necessity  could 
be  pretended  to  exist :  moreover,  another  mission  by  us 
would  naturally  be  regarded  as  evidence  of  a  disposition  on 
our  part  to  purchase  the  friendship  of  revolutionary  France, 
even  at  the  expence  of  honor  ;  an  impression  which  could 
hardly  fail  to  injure  our  interests  with  other  countries:  and 
the  measure  w'Ould  involve  the  further  inconvenience  of 
transferring  the  negotiation  from  this  country,  where  our 
government  could  regulate  it  according  to  its  own  view  of 
exigencies,  to  France,  where  that  advantage  would  be  en¬ 
joyed  by  her  Government,  and  where  the  power  of  judging 
for  ms  must  be  delegated  to  Commissioners  ;  who,  ading 
tinder  immense  individual  responsibility,  at  a  distance  too 
great  for  consultation,  would  be  apt  to  act  with  hesitancy 
and  irresolution,  whether  the  policy  of  the  case  required 
concession  or  firmness.  This  was  to  place  it  too  much  in 
the  power  of  France  to  manage  the  progress  of  the  negoti¬ 
ation  accordin  g  to  events. 


It 


27 


It  has  been  said  that  Paris  was  wisely  preferred  as  the 
place  of  negociation,  because  it  ferved  to  avoid  the  cabal- 
lings  of  a  French  minister  in  this  country.  But  there  is 
not  enough  in  this  argument  to  counterbalance  the  weigh¬ 
ty  considerations  on  the  other  side.  The  intrigues  of  Ge¬ 
net  and  his  successors  were  perplexing  to  the  Government, 
chiefly  because  they  were  too  well  seconded  by  the  prepos¬ 
sessions  of  the  people.  The  great  alteration  in  public  opin¬ 
ion,  had  put  it  completely  in  the  power  of  our  Lxecutive  t@ 
controul  the  machinations  of  any  future  public  Agent  of 
France.  It  ought  also  to  be  remembered,  that  if  France 
has  not  known  agents,  (lie  never  will  be  without  secret  ones, 
and  that  her  partisans  among  our  citizens,  can  much  better 
promote  her  cause,  than  any  Agents  she  can  send.  In  fact, 
her  Agents,  by  their  blunders,  were  in  the  event  rather  use¬ 
ful  than  pernicious  to  our  affairs, 

ft*-  ►  VI  -•  ft  t  I  S  •  + 

,  > 

But  is  it  likely  that  France  would  have  sent  a  minister  to 

this  country?  When  we  find,  that  from  calculations  of  policy 
she  could  brook  the  ignominy  which  the  publication  of  the 
dispatches  of  our  commissioners  was  calculated  to  bring  up¬ 
on  her  ;  and  stifling  her  resentment,  could  invite  the  renewal 
of  negociation  j  what  room  can  there  be  to  doubt,  that  the 
same  calculations  would  have  induced  her  to  send  a  minister 
to  this  country  v/hen  an  opening  was  given  for  it  ? 

'•  ’lovo  jtci  c  J  !'«■}  :A'h  udhr.k  tu 

/ 

The  French  minister  for  foreign  relations,  through  the 
French  Diplomatic  Agent  at  the  Hague,  had  opened  a  com¬ 
munication  with  Mr.  Murray,  our  resident  there,  for  the 
purpose  of  reviving  negociation  between  the  two  countries. 
In  this  manner  assurances  were  given  that  France  was  dispos¬ 
ed  to  treat,  and  that  a  Minister  from  us  would  be  received  and 
accredited.  But  they  were  accompanied  with  intimations  of 
the  characters  proper  to  be  employed,  and  who  would  be 
likely  to  succeed  ;  which  was  exceptionable,  both  as  it  savor- 


ed  of  the  pretension  (justly  censured  by  the  President  him¬ 
self)  of  prescribing  to  other  Governments  how  they  were  to 
manage  their  own  affairs  *,  and  as  it  might  according  to  cir¬ 
cumstances,  be  construed  into  a  tacit  condition  of  the  pro¬ 
mise  to  receive  a  Minister.  Overtures  so  circuitous  and  in. 
formal,  through  a  person  who  was  not  the  regular  organ  of 
the  French  government  for  making  them,  to  a  person  who 
was  not  the  regular  organ  of  the  American  government  for 
receiving  them,  might  be  a  very  fit  mode  of  preparing  the 
way  for  the  like  overture  in  a  more  authentic  and  oblig¬ 
atory  shape  :  But  they  were  a  very  inadequate  basis  for  the 
institution  of  a  new  Mission, 

♦  .  .*>/;>>  ;  j  ;.i,;  ;,"'i  .  *  r»  .  «  V . 

*W hk the  President  pledged  himself  in  his  speech  to 
send  a  minister,  if  satisfactory  assurances  of  a  proper  recep¬ 
tion  were  given,  he  must  have  been  understood  to  mean 
such  as  were  direct  andofficial,  not  such  as  were  both  infor¬ 
mal  and  destitute  of  a  competent  sanction. 

t  .  y  J  •  i  J  •  J  .*  \  i.  .  «  .  .  ,  .  V  ;  '  J  ,  ,  ,r  '  J  '  ’  *  T  y  •  •  ~  • ,  »y  f  !  ^  „  r  ^  * 

Yet  upon  this  loose  and  vague  foundation,  Mr.  Adams 
precipitately  nominated  Mr.  Murray  as  Envoy  to  the 
French  Republic,  without  previous  consultation  with  any  of 
his  Ministers.  The  nomination  itself  was  to  each  of  them, 
even  to  the  Secretary  of  State,  his  Constitutional  Counsellor, 
in  similar  affairs,  the  first  notice  of  the  project. 

Thus  was  the  measure  wrong,  both  as  to  mode  and  sub¬ 
stance. 

'  '  ■  ‘  -  > .  .  ’  .7  ‘  ; 

A  Prfsidekt  is  not  bound  to  conform  to  the  advice  of 
his  Ministers.  He  is  even  under  no  positive  injundlion  to 
ask  or  require  it.  But  the  constitution  presumes  that  he 
will  consult  them ;  and  the  genius  of  our  government  and 
^e  public  good  recommend  the  practice. 


29 


As  the  President  nominates  his  Ministers,  and  may  dis¬ 
place  them  when  he  pleases,  it  mast  be  his  own  fault  if  he  be 
not  surrounded  by  men,  who  for  ability  and  integrity  de¬ 
serve  his  confidence.  And  if  his  ministers  are  of  this  cha¬ 
racter,  the  consulting  of  them  will  always  be  likely  to  be  use* 
ful  to  himself  and  to  the  State.  Let  it  even  be  supposed 
that  he  is  a  man  of  talents  superior  to  the  collected  talents  of 
all  his  ministers  (which  can  seldom  happen,  as  the  world  has 
seen  but  few  Fredericks')  he  may,  nevertheless,  often  as¬ 
sist  his  judgment  by  a  comparison  and  collision  of  ideas* 
The  greatest  genius,  hurried  away  by  the  rapidity  of  its 
own  conceptions,  will  occasionally  overlook  obstacles  which, 
ordinary  and  more  phlegmatic  men  will  discover,  and  which, 
when  presented  to  his  consideration,  will  be  thought  by 
himself  decisive  objections  to  his  plans. 

When,  unhappily,  an  ordinary  man  dreams  himself  to  be  a 
Frederick,  and  through  vanity  refrains  from  counselling 
with  his  constitutional  advisers,  he  is  very  apt  to  fall  into 
the  hands  of  miserable  intriguers,  with  whom  his  self-love 
is  more  at  ease,  and  who  without  difficulty  Hide  into  his  con¬ 
fidence,  and  by  flattery,  govern  him. 

The  ablest  men  may  profit  by  advice.  Inferior  men  can¬ 
not  dispense  with  it  j  and  if  they  do  not  get  it  through  legiti¬ 
mate  channels,  it  will  find  its  way  to  them,  through  such  as 
are  clandestine  and  impure. 

Very  different  from  the  practice  of  Mr.  Adams  was  that 
of  the  modest  and  sage  Washington — He  consulted  much, 
pondered  much,  resolved  slowly,  resolved  surely. 

^  v  .  I  •  i  - 

And  as  surely  Mr.  Adams  might  have  benefitted  by  the 
advice  of  his  ministers. 

The 


The  stately  system  of  not  consulting  Ministers  is  likely- 
to  have  a  further  disadvantage.  It  will  tend  to  exclude 
from  places  of  pnmaraiy  trust,  the  men  most  fit  to  occupv 
them. 

h  ew  and  feeble  are  the  interested  inducements  to  accept 
a  place  in  our  Administration.  Far  from  being  lucrative, 
there  is  not  one  ■which  will  not  involve  pecuniary  sacrifice  to 
every  honest  man  of  pre-eminent  talents.  And  has  not  expe¬ 
rience  shewn,  that  he  must  be  fortunate  indeed,  if  even  the 
successful  execution  of  his  task  can  secure  to  him  consider¬ 
ation  and  fame?  Of  a  large  harvest  of  obliquy  he  is  sure. 

If  excluded  from  the  counsels  of  the  Executive  Chief,  his 
office  must  become  truly  insignificant.  What  able  and  vir¬ 
tuous  man  will  long  consent  to  be  so  miserable  a  pageant  ? 

Every  thing  that  tends  to  banish  from  the  Administration 
able  men,  tends  to  diminish  the  chances  of  able  counsels. 
The  probable  operation  of  a  system  of  this  kind,  must  be  to 
consign  places  of  the  highest  trust  to  incapable  honest  men, 
whose  inducement  will  be  a  livelihood,  or  to  capable  disho¬ 
nest  men,  who  will  seek  indirect  indemnifications  for  the  de¬ 
ficiency  of  direct  and  fair  inducements. 

The  precipitate  nomination  of  Mr.  Murray  brought  Mr. 
Adams  into  an  auk  ward  predicament. 

He  found  it  necessary  to  change  his  plan  in  its  progress, 
and  instead  of  one,  to  nominate  three  Envoys,  and  to  fuper- 
add  a  promise,  that,  though  appointed,  they  should  not  leave 
the  United  Staies  till  further  and  more  perfect  assurances 
were  given  by  the  French  Government. 

*  r  f  {  p  -  ‘  \  l  ’ 

Thi  s  remodification  of  the  measure  was  a  virtual  acknow¬ 
ledgment  that  it  had  been  premature.  How  unseemly  was 

this 


01 


this  fluctuation  in  the  Executive  Chief.  It  argued  either 
instability  of  views,  or  want  of  sufRcient  consideration  be¬ 
forehand.  The  one  or  the  other,  in  an  affair  of  so  great  mo¬ 
ment,  is  a  serious  reproach. 

AaDiTio'-  al  and  more  competent  assurances  were  receiv¬ 
ed  j  but  before  the  Envoys  departed,  intelligence  arrived  of 
a  new  Revolution  in  the  French  Government;  which,  in 
violation  of  the  Constitution,  had  expelled  two  of  the  Direc¬ 
tory. 

Another  Revolution  :  Another  constitution  overthrown  : 
Surely  here  was  reason  for  a  pause,  at  least  till  it  was  ascer¬ 
tained  that  the  new  Directory  would  adhere  to  the  engage¬ 
ment  of  its  predecessors,  and  would  not  send  back  our  En¬ 
voys  with  disgrace. 

In  the  then  posture  of  French  affairs,  which  externally 
as  well  as  internally,  were  unprosperous,  a  pause  was  every 
way  prudent.  The  recent  revolution  was  a  valid  motive 
for  it. 

Di  finitive  compacts  between  nations,  called  real  Trea¬ 
ties,  are  binding,  notwithstanding  Revolutions  of  Govern¬ 
ments.  But  to  apply  the  maxim  to  Ministerial  acts;  prepa¬ 
ratory  only  to  negociation,  is  to  extend  it  too  far  ;  to  apply  it 
to  such  acts  of  an  unstable  revolutionary  Government  (like 
that  of  France  at  that  time)  is  to  abufe  it. 

Had  any  policy  of  the  moment  demanded  it  it  would  have 
been  net  at  all  surprising  to  have  feen  the  new  Directory 
disavowing  the  assurance  which  had  been  given,  and  imput¬ 
ing  it  as  a  crime  to  the  Fx-Directors,  on  the  pretence  that 
they  had  prostrated  the  dignity  of  the  Republic  by  courting 
the  renewal  of  negociation  with  a  government,  which  had  so 
grossly  insulted  it*  Yet 


32 


Yet  our  Envoys  were  dispatched  without  a  ratification  bf 
the  assurance  by  the  new  Directory,  at  the  hazard  of  the  in¬ 
terests  and  the  honor  of  the  country. 

Again,  the  dangerous  and  degrading  system  of  not  con¬ 
sulting  Ministers  was  acted  upon  „ 

When  the  news  of  the  Revolution  in  the  Directory  arriv¬ 
ed,  Mr.  Adams  was  at  his  seat  in  Massachusetts.  His  Mi¬ 
nisters  addressed  to  him  a  joint  letter,  communicating  the 
intelligence,  and  submitting  to  his  consideration,  whether 
that  event  ought  not  to  suspend  the  projected  mission,  in 
a  letter  which  he  afterwards  wrote  from  the  same  place,  he 
directed  the  preparation  of  a  draft  of  instructions  for  the 
Envoys,  and  intimated  that  their  departure  would  be  sus¬ 
pended  for  some  time . 

Shortly  after  he  came  to  Trenton,  where  he  adjusted 
with  his  Ministers  the  tenor  of  the  instructions  to  be  given, 
but  he  observed  a  profound  silence  on  the  question,  whe¬ 
ther  it  was  expedient  that  the  Mission  should  proceed— 
The  morning  after  the  instructions  were  settled,  he  signi¬ 
fied  to  the  Secretary  of  State  that  the  Envoys  were  imme¬ 
diately  to  depart. 

He  is  reported  to  have  assigned  as  the  reason  of  his  si¬ 
lence,  that  he  knew  the  opinions  of  his  Ministers  from  their 
letter  ;  that  he  had  irrevocably  adopted  an  opposite  one ; 
and  chat  he  deemed  it  most  delicate  not  to  embarrass  them 
bv  a  useless  discussion. 

But  would  it  not  have  been  more  prudent  to  have  kept 
his  judgment  in  some  degree  of  suspense,  till  after  an  inter¬ 
view  and  discussion  with  his  Ministers  ?  Ought  he  to  have 
taken  it  for  granted  that  the  grounds  of  his  opinion  were  so 

infallible, 


33 

infallible,  that  there  was  no  possibility  of  arguments  being 
used  which  were  sufficient  to  shake  them?  Ought  he  not 
to  have  recollected  the  sudden  revolution  which  his  judg¬ 
ment  had  undergone  in  the  beginning  of  the  business,  and 
to  have  inferred  from  this,  that  it  might  have  yielded  in  ano¬ 
ther  instance  to  better  lights  ?  Was  it  necessary  for  him,  if 
he  had  a  conference  with  his  ministers,  to  have  alarm¬ 
ed  their  delicacy,  by  prefixing  the  discussion  with  a  decla¬ 
ration  that  he  had  fixed  an  unalterable  opinion  ?  Did  not  the 
intimation  respecting  a  suspension  of  the  departure  of  the 
Envoys,  imply  that  this  would  continue  till  there  was  a 
change  of  circumstances?  Was  it  not  a  circumstance  to 
strengthen  expectation  in  the  Ministers,  when  consulted 
about  the  instructions,  that  they  would  be  heard  as  to  the 
principal  point,  previous  to  a  definitive  resolution  ? 

Giving  Mr.  Adams  credit  for  sincerity,  the  dcsulto- 
riness  of  his  mind  is  evinced  by  the  very  different  grounds 
upon  which,  at  different  times,  hchaa  defended  the  propriety 

of  the  mission. 

*  '  *  *  *  I  4  1 

Sometimes  he  has  treated  with  ridicule  the  idea  of  its 
being  a  measure  which  would  terminate  in  peace  *,  asserting 
chat  France  would  not  accommodate,  on  terms  admissible 
by  the  United  States,  and  that  the  effect  to  be  expected  from, 
the  mission,  was  the  demonstration  of  this  truth,  and  the 
union  of  public  opinion  on  the  necessity  of  war. 

Sometimes,  and  most  frequently,  he  has  vindicated  the 
measure  as  one  conformable  with  the  general  and  strong 
wish  of  the  country  for  peace,  and  as  likely  to  promote  that 
desirable  object. 

It  is  now  earnestly  to  be  hoped,  that  the  final  issue  ot 

the  Mission,  in  an  honorable  accommodation,  may  compen- 

E 


34 


sate  for  the  sacrifice  of  consistency,  dignity,  harmony  and 
reputation,  at  which  it  has  been  undertaken. 

But  even  in  relation  to  the  adjustment  of  differences 
with  the  French  Republic,  the  measure  was  injudicious. 
It  was  probable  that  it  would  delay,  rather  than  accelerate, 
such  an  adjustment. 

0 

The  situation  of  French  affairs,  at  the  time  of  the  over¬ 
tures  for  renewing  the  negociation,  coincides  with  the  soli¬ 
citude  which  was  manifested  for  that  object,  to  render  it 
likely  that,  at  this  juncture,  France  really  desired  accom¬ 
modation.  If  this  was  so,  it  is  presumeable  (as  observed 
in  another  place)  that,  had  not  the  declaration  about  send¬ 
ing  a  Minister  to  her  intervened,  she  would  have  sent  one 
to  us,  with  adequate  powers  and  instructions.  Towards  a 
Minister  here,  our  Government  might  have  acted  such  a 
part  as  would  have  hast^n^H  n  mnc1»i<imn  ;  ar»tl  the  Minister, 
conforming  to  the  impressions  of  his  Government  when  he 
was  sent,  it  is  not  improbable  that  a  desirable  arrangement 
•might  some  time  since  have  been  effected. 

Instead  of  this,  the  mode  pursued,  naturally  tended  to 
delay.  A  lapse  of  time,  by  changing  the  circumstances,  is 
very  apt  to  change  the  views  of  Governments.  The  French 
Agents,  charged  with  the  negociation  at  Paris,  could  find 
little  difficulty  in  protracting  it  till  events  (such  as  the  fate 

of  a  campaign)  should  be  ascertained,  as  a  guide  to  rise  or 
fall  in  their  pretensions.  And  in  this  Way,  obstacles  might 
supervene,  which  would  not  have  existed  in  the  beginning, 
and  which  might  render  accommodation  impracticable — or 
practicable  only  on  terms  injurious  to  our  interests. 

Thus,  on  every  just  calculation,  whatever  may  be  the  is¬ 
sue,  the  measure,  in  reference  either  to  our  internal  or  fo¬ 
reign 


35 


teign  affairs,  even  to  our  concerns  with  France  herself,  was 
alike  impolitic. 

It  is  sometimes  defended  by  the  argument,  that  when 
our  Commissioners  departed,  there  were  circumstances  in 
the  position  of  Europe  which  made  a  general  peace  during 
the  succeeding  winter  probable,  and  that  it  would  have  been 
dangerous  for  this  country,  remote  as  it  is  from  Europe,  to 
have  been  without  agents  on  the  spot  authorised  to  settle 
hs  controversy  with  France,  at  the  same  epoch.  The  coun¬ 
try,  it  is  said,  might  otherwise  have  been  left  in  the  perilous 
situation  of  having  a  subsisting  quarrel  with  France,  after 
she  had  disembarrassed  herself  of  all  her  European  ene¬ 
mies. 

The  idea  that  a  general  peace  was  likely  to  happen  dur¬ 
ing  that  winter,  was,  I  know,  entertained  by  Mr.  Adams 
himself;  for,  in  a  casual  conversation  at  Trenton,  he  ex¬ 
pressed  it  to  me,  and  I  supported  a  different  opinion.  But 
waving  now  a  discussion  of  the  point,  and  admitting  that  the 
expectation  was  entertained  on  substantial  grounds,  though 
it  has  not  been  verified  by  experience,  still  the  argument  de¬ 
duced  from  it  is  not  valid,. 

The  expediency  of  the  measure  must  be  tested  by  the 
state  of  things  when  it  had  its  inception.  At  the  time  the 
foundation  was  laid  for  it  by  the  speech,  when  even  the  no¬ 
mination  of  Mr.  Murray  took  place,  the  affairs  of  France 
and  of  her  enemies,  portended  a  result  very  inauspicious  to 
her,  and  very  different  from  that  of  a  general  peace,  on  con¬ 
ditions  which  would  leave  her  the  inclination  or  the  power, 
to  prosecute  hostilities  against  this  country. 

But  even  on  the  supposition  of  other  prospects,  Mr 
Adams  had  the  option  of  a  substitute  far  preferable  to  the 
expedient  which  he  chose. 

HB 


3  6 


He  might  secretly  and  confidentially  have  nominated  one 
®r  more  of  our  Ministers  actually  abroad  for  the  purpose  of 
treating  with  France  ;  with  eventual  instructions  predicated 
upon  appearances  of  approaching  peace. 

An  expedient  of  this  sort,  merely  provisory,  could  have 
had  none  of  the  bad  effects  of  the  other.  If  the  secret  was 
kept,  it  could  have  had  no  inconvenient  consequences  j  if 
divulged,  it  would  have  been  deemed  here  and  elsewhere,  a 
prudent  precaution  only,  recommended  by  the  distant  situa¬ 
tion  of  the  country,  to  meet  future  casualties,  with  which  we 
might  otherwise  not  have  been  able  to  keep  pace.  To  the 
enemies  of  France,  it  could  have  given  no  ill  impression  of 
ns  5  to  France,  no  motive  to  forbear  other  conciliatory 
means,  for  one  and  the  same  reason,  namely,  because  the 
operation  was  to  be  eventual. 

THERF.  are  some  collateral  incidents  connected  with  this 
business  of  the  Mission,  which  it  may  not  be  useless  to 
mention,  as  they  will  serve  still  farther  to  illustrate  the  ex¬ 
treme  propensity  of  Mr.  Adams’s  temper  to  jealousy. 

It  happened  that  I  arrived  at  Trenton  a  short  time  be¬ 
fore  the  President— Chief  Justice  Els  worth  a  short  time 
after  him.  Ihis  was  considered  as  evidence  of  a  combi¬ 
nation  between  the  heads  of  Departments,  the  Chief  Justice,, 
and  myself,  to  endeavour  to  influence  or  counteract  him  in 
the  affair  of  the  Mission. 

The  truth,  nevertheless,  most  certainly  is,  that  I  went 
to  Trenton  with  General  Wilkinson,  pursuant  to  a  pre¬ 
concert  with  him  of  some  weeks  standing,  to  accelerate,  by 
personal  conferences  with  the  Secretary  of  War,  the  adop¬ 
tion  and  execution  of  arrangements  which  had  been  plan¬ 
ned  between  that  General  and  myself,  for  the  future  dispo¬ 
sition 


sition  of  the  Western  Army,  that  when  I  left  New-York 
upon  this  journey,  I  had  no  expectation  whatever,  that  the 
President  would  come  to  Trenton,  and  that  I  did  not  stay 
at  this  place  a  day  longer  than  v»ras  indispensible  to  the  ob¬ 
ject  I  have  stated.  General  Wilkinson,  if  necessary, 
might  be  appealed  to,  not  only  as  knowing  that  this  was  a 
real  and  sincere  purpose  of  my  journey,  but  as  possessing 
satisfactory  evidence,  that  in  all  probability,  I  had  no  antici¬ 
pation  of  the  movement  of  the  President, 

As  to  Chief  Justice  Elsworth,  the  design  of  his  journey 
was  understood  to  be  to  meet  his  colleague,  Governor  Davy, 
at  the  seat  of  the  Government,  where  they  would  be  at  the 
fountain  head  of  information,  and  would  obtain  any  lights  or 
explanations  which  they  might  suppose  useful.  This  was 
manifestly  a  very  natural  and  innocent  solution  of  the  Chief 
Justice’s  visit,  and  I  believe  the  true  one. 

Yet  these  simple  occurrences  were  to  the  jealous  mind 
of  Mr.  Adams,  «  confirmations  strong,”  of  some  mischiev¬ 
ous  plot  against  his  independence. 

The  circumstance  which  next  presents  itself  to  examina¬ 
tion,  is  the  dismission  of  the  two  Secretaries,  Pickering 
and  M‘Henry.  This  circumstance,  it  is  known,  occasion¬ 
ed  much  surprise,  and  a  strong  sensation  to  the  disadvantage 
of  Mr.  Adams. 

It  happened  at  a  particular  juncture,  immediately  after  the 
unfavorable  turn  of  the  election  in  New-York,  and  had 
much  the  air  of  an  explosion  of  combustible  materials  which 
had  been  long  prepared,  but  which  had  been  kept  down  by 
prudential  calculations  respecting  the  effect  of  an  explosion 
upon  the  friends  of  those  Ministers  in  the  State  of  New- 
York.  Perhaps,  when  it  was  supposed  that  nothing  could 


33 


y 


be  lost  m  this  quarter,  and  that  somethin*  m writ  ‘  j 

elsewhere  by  an  atoning  sacrifice  of  those  m£1s  &T 
Ctafiy  Mr  Pickering,  who  had  been  for 

~*dy  °,dl0US  tC  ,he  °PP°sit.on  party,  it  was  determined  to 
proceed  to  extremities.  This,  as  a  mere  conjecture,  is  offer 
cd  for  as  much  as  it  may  be  worth.  J 

One  fact,  however  is  understood  to  be  admitted,  na  me- 
1),  that  neither  of  the  dismissed  Mmisters  had  given  any 
new  or  recent  cause  for  their  dismission.  > 

evem  '*"*  °f  thin«s  W  to  thk 

,  ’  IS  tor  be  traced  10  Ae  ungovernable  temper  of  Mr 

yearns.  ^  It  ,s  a  fact  that  he  is  often  liable  to  paroxisms  of 

anger,  which  deprive  him  of  self  command,  and  produce  ve 

ry  outrageous  behaviour  to  those  who  approach  him.  Most 

5ihUwoRMifterpandSeVerai  distinSuislled  Members 
id  £  f"°  Hou-es  Congress,  have  been  humiliated  by  the 
effects  of  these  gusts  of  passion.  1  ' 


.  is  violence,  and  the  little  consideration  for  them  which 
was  implied  in  declining  to  consult  them,  had  occasioned 
great  dryness  between  the  President  and  his  Ministers,  ex- 
cept,  I  believe,  the  Secretary  of  the  Navy. 


The  neglect  was  of  course  most  poignant  to  Mr.  Pick- 
enng,  because  it  had  repeatedly  operated  in  matters  apper- 
ainrng  to  his  office.  Nor  was  it  the  disposition  of  this 
respectable  man,  justly  tenacious  of  his  own  dignity  and 
in  ePe"dence>  to  practise  condescention  towards  an  imne 
nous  chief.  Hence  the  breach  constantly  grew  wider  and 
wider,  till  a  seperation  took  place. 


The  manner  of  the  dismission  was  abrupt  and  uncour- 
ttous  i  ill  suited  to  a  man,  who  in  different  stations,  had  me- 
ted  so  much  from  his  country. 


Admitting 


39 

Admitting  that  when  the  President  and  his  Minister  had 
gotten  into  a  situation  thus  unpleasant,  a  seperation  was  un¬ 
avoidable  *,  still,  as  there  was  no  surmise  of  misconduct,  the 
case  required  a  frank  politeness,  not  an  uncouth  austerity. 

But  the  remark  most  interesting  in  this  particular,  to  the 
character  of  the  President,  is,  that  it  was  by  his  own  fault 
that  he  was  brought  into  a  situation  which  might  oblige  him 
to  displace  a  Minister,  whose  moral  worth  has  his  own  suf¬ 
frage,  and  whose  abilities  and  services  have  that  of  the 
public 

The  dismission  of  this  Minister  was  preceded  by  a  very 
curious  circumstance.  It  was,  without  doubt,  announced  as 
a  thing  shortly  to  happen  in  an  opposition  circle,  before  any 
friend  of  the  Government  had  the  slightest  suspicion  of  it. 
This  circumstance,  taken  in  connection  with  the  period  at 
which  it  happened,  naturally  provokes  the  conjecture  that 
there  may  have  been  some  collateral  inducements  to  the 
step. 

The  dismission  of  the  Secretary  at  War  took  place  about 
the  same  time.  It  was  declared  in  the  sequel  of  a  long  con¬ 
versation  between  the  President  and  him,  of  a  nature  to  ex¬ 
cite  alternately  pain  and  laughter;  pain,  for  the  weak  and 
excessive  indiscretions  of  a  Chief  Magistrate  of  the  United 
States;  laughter,  at  the  ludr~:>us  topics  which  constituted 
charges  against  this  officer. 

A  promine  nt  charge  was,  that  the  Secretary,  in  a  Report 
to  the  House  of  Representatives,  had  eulogized  General 
llfashvigtari)  and  had  attempted  to  eulogize  General  Hamil - 
ton>  which  was  adduced  as  one  proof  of  a  combination,  in 
which  the  Secretary  was  engaged,  to  depreciate  and  injure 
him,  the  President, 


Wqnb  rfvi.  • 


4o 


Wonderful!  passing  Wonderful!  that  an  Eulogy  of 
the  dead  patriot  and  hero  ;  of  the  admired  and  beloved 
Washington,  consecrated  in  the  affections  and  reverence 
of  his  country,  should,  in  any  shape,  be  irksome  to  the  ears 
of  his  successor. 

«• 

Singular  also,  that  an  encomium  on  the  officer,  first  in 
rank  in  the  armies  of  the  United  States,  appointed  and  con¬ 
tinued  by  Mr.  Adams,  should  in  his  eyes  have  been  a  crime 
in  the  head  of  the  War  Department,  and  that  it  should  be 
necessary,  in  order  to  avert  his  displeasure,  to  obliterate  a 
compliment  to  that  officer  from  an  official  report. 


Another  principal  topic  of  accusation  was,  that  the  Se¬ 
cretary  had,  with  the  other  Ministers,  signed  the  joint  letter 
which  had  been  addressed  to  the  President  respecting  a  sus¬ 
pension  of  the  Mission  to  France.  It  was  ostentatiously 
asked,  how  he  or  they  should  pretend  to  know  any  thing  of 
diplomatic  affairs ;  and  it  was  plainly  intimated  that  it  was 
presumption  in  them  to  have  intermeddled  in  such  affairs. 

A  variety  of  things  equally  frivolous  and  outre  passed. 
By  way  of  episode,  it  fell  to  my  lot  to  be  distinguished  by  a 
toirent  oi  gross  personal  abuse  \  and  I  was  accused  of  having 
contributed  to  the  loss  of  the  election  in  New-York,  out  of 
ill  will  to  Mr.  Adams:  a  notable  expedient  truly  for  giving 
y  to  my  ill  will.  Who  is  so  blind  as  not  to  see,  that 
actuated  by  such  a  motive,  I  should  have  preferred  by  the 
success  of  the  election,  to  have  secured  the  choice  of  elect¬ 
ors  for  the  State  of  New-York,  who  would  have  been  likely 
to  co  operate  in  the  views  by  which  I  was  governed  ? 

To  those  who  have  not  had  opportunities  of  closely  in¬ 
specting  the  weaknesses  of  Mr.  Adams's  character,  the  de¬ 
tails  of  this  extraordinary  interview  would  appear  incredible, 

bat 


bat  to  those  who  have  had  these  opportunities,  they  would 
not  even  furnish  an  occasion  of  surprise.  But  they  would 
be,  to  all  who  knew  their  truth,  irrefragible  proofs  of  his  un¬ 
fitness  for  the  station  of  Chief  Magiftrate, 

III  treatment  of  Mr.  M‘Henry  cannot  fail  to  awaken 
the  sympathy  of  every  person  well  acquainted  with  him. 
Sensible,  judicious,  well-informed,  of  an  integrity  never 
queftioned,  of  a  temper,  which,  though  firm  in  the  support 
of  principles,  has  too  much  moderation  and  amenity  to  offend 
by  the  manner  of  doing  it — I  dare  pronounce  that  he  never 
gave  Mr.  Adams  cause  to  treat  him,  as  he  did,  with  unkind- 
ness.  If  Mr.  Adams  thought  that  his  execution  of  his  of¬ 
fice  indicated  a  want  of  the  peculiar  qualifications  required  for 
it,  he  might  have  said  so  with  gentleness,  and  he  would 
have  only  exercised  a  prerogative  entrusted  to  him  by  the 
Constitution,  to  which  no  blame  could  have  attached  j  but 
it  was  unjustifiable  to  aggravate  the  deprivation  of  office  by 
humiliating  censures  and  bitter  reproaches. 

The  last  material  occurrence  in  the  administration  of  Mr. 
Adams,  of  which  I  fhall  take  notice,  is  the  pardon  of  Fries% 
and  other  principals  in  the  late  insurrection  in  Pennsyl¬ 
vania. 

It  is  a  fact  that  a  very  refractory  spirit  has  long  existed" 
in  the  Western  Counties  of  that  State.  Repeatedly  have  its 
own  laws  been  opposed  with  violence,  and  as  often,  accord¬ 
ing  to  my  information  with  impunity. 

•  r 

It  is  also  a  fact,  which  every  body  knows,  that  the  laws 
of  the  Union,  in  the  vital  article  of  revenue,  have  been  twice 
resisted  in  the  same  State  by  combinations  so  extensive,  and 
under  circumstances  so  violent,  as  to  have  called  for  the  em¬ 
ployment  of  military  force ,  once  under  the  former  President, 

JP  and 


42 


and  once  under  the  actual  president ;  which  together  cost 
the  United  States  nearly  a  million  and  a  half  of  dollars. 

In  the  first  instance  it  happened,  that  by  the  early  submis¬ 
sion  of  most  of  the  leaders,  upon  an  invitation  of  the  govern¬ 
ment,  few  offenders  of  any  consequence  remained  subject  to 
prosecution.  Of  these,  either  from  the  humanity  of  the 
juries  or  some  deficiency  in  the  evidence,  not  one  was  capi¬ 
tally  convicted.  Two  poor  wretches  only  were  sentenced 
to  die,  one  of  them  little  short  of  an  ideot,  the  other  a  mise¬ 
rable  follower  in  thehindmost  train  of  rebellion, both  beings  so 
insignificant  in  all  respects,  that  after  the  lenity  shewn  to  the 
chiefs,  justice  would  have  worn  the  mien  of  ferocity,  if  she 
had  raised  her  arm  against  them.  The  sentiment  that  their 
punishment  ought  to  be  remitted  was  universal  5  and  the 
President,  yielding  to  the  special  considerations,  granted 
them  pardons. 

In  the  last  instance,  some  of  the  most  important  of  the 
offenders  were  capitally  convicted — one  of  them  by  the  ver¬ 
dicts  of  two  successive  juries.  The  general  opinion  of  the 
friends  of  the  Government  demanded  an  example,  as  indis¬ 
pensable  to  its  security. 

,  The  opinion  was  well  founded.  Two  insurrections  in 
the  same  State,  the  one  upon  the  heels  of  the  other,  demon¬ 
strated  a  spirit  of  insubordination  or  disaffection  which  re¬ 
quired  a  strong  corrective.  It  is  a  disagreeable  fact,  forming 
a  weighty  argument  in  the  question,  that  a  large  part  of  the 
population  of  1  ennsylvania  is  of  a  composition  which  pecu¬ 
liarly  fits  it  for  the  intrigues  of  factious  men,  who  may  de¬ 
sire  to  disturb  or  overthrow  the  Government.  And  it  is 
an  equally  disagreeable  fact,  that  disaffection  to  the  national 
Government  is  in  no  other  State  more  general,  more  deeply 
rooted  or  more  envenomed. 

The 


43 


The  late  Governor  Mifflin  himself  informed  me  that 
in  the  first  case,  insurrection  had  been  organized  down  to 
the  very  liberties  of  Philadelphia,  and  that  had  not  the  Go¬ 
vernment  anticipated  it,  a  general  explosion  would  speedily 
have  ensued. 

It  ought  to  be  added,  that  the  impunity,  so  often  experi¬ 
enced,  had  made  it  an  article  in  the  creed  of  those  who  were 
actuated  by  the  insurgent  spirit,  that  neither  the  General 
nor  the  State  Government  dared  to  inflict  capital  punish, 
ment. 

To  destroy  this  persuasion,  to  repress  this  dangerous 
spirit,  it  was  essential  that  a  salutary  rigor  should  have 
been  exerted,  and  that  those  who  were  under  the  influence 
of  the  one  and  the  other  should  be  taught  that  they  were  the 
dupes  of  a  fatal  illusion. 

Of  this,  Mr.  Adams  appeared  so  sensible,  that  while  the 
trials  were  pending,  he  more  than  once  imprudently  threw 
out,  that  the  accused  must  found  their  hopes  of  escape  ei¬ 
ther  in  their  innocence  or  in  the  lenity  of  the  juries  ;  since 
from  him,  in  oase  of  conviction,  they  would  have  nothing  to 
expect  And  a  very  short  time  before  he  pardoned  them, 
he  declared  (b)  with  no  small  ostentation,  that  the  mistaken 
clemency  of  Washington  on  the  former  occasion,  had 
been  the  cause  of  the  second  insurrection,  and  that  he 
would  take  care  there  should  not  be  a  third,  by  giving  the 
laws  their  full  course  against  the  convicted  offenders. 

YfcT  he  thought  proper,  as  if  distrusting  the  courts  and 
officers  of  the  United  States,  to  resort  through  the  Attor¬ 
ney-General  to  the  counsel  of  the  culprits,  for  a  statement  of 
fchtir  cases  ;  (c)  in  which,  was  found,  besides  some  objec¬ 
tions 

(b)  (c)  Of  tliefe  two  fa&s,  my  evidence  is  inferior  to  that 
which  fupports  the  other  allegations  of  this  letter  ;  yet  it  is 
fo  flrong  that  I  1‘ecl  myfelf  warranted  to  state  them. 


I 


-  44 

of  form,  the  novel  doctrine,  disavowed  by  every  page  of  our 
law  books,  that  treason  does  not  consist  of  resistance  by 
force  to  a  public  law ,  unless  it  be  an  act' relative  to  the  mi¬ 
litia,  or  other  military  force. 

i 

And  upon  this,  or  upon  some  other  ground,  not  easy  to 
be  comprehended,  he  of  a  sudden  departed  from  all  his  for¬ 
mer  declarations,  and  against  the  unanimous  advice  of  his 
Ministers,  with  the  Attorney  General,  came  to  the  resolu¬ 
tion,  which  he  executed,  of  pardoning  all  those  who  had  re¬ 
ceived  sentence  of  death. 

No  wonder  that  the  public  was  thunderstruck  at  such  a 
result — that  the  friends  of  the  Government  regarded  it  as  a 
virtual  deriliction — it  was  impossible  to  commit  a  greater 
error.  The  particular  situation  of  Pennsylvania,  the  singu¬ 
lar  posture  of  human  affairs,  in  which  there  is  so  strong  a 
tendency  to  the  disorganization  of  Government — the  turbu¬ 
lent  and  malignant  humors  which  exist,  and  are  so  industri¬ 
ously  nourished  throughout  the  United  States  ;  every  thing 
loudly  demanded  that  the  Executive  should  have  acted  with 
exemplary  vigor,  and  should  have  given  a  striking  demonstra¬ 
tion,  that  condign  punishment  would  be  the  lot  of  the  vio¬ 
lent  opposers  of  the  laws. 

Th^  contrary  course,  which  was  pursued,  is  the  most  in¬ 
explicable  part  of  Mr.  Adams’s  conduct.  It  shews  him  so 
much  at  variance  with  himself,  as  well  as  with  sound  poli¬ 
cy,  that  we  are  driven  to  seek  a  solution  for  it  in  some  sys¬ 
tem  of  concession  to  his  political  enemies  ;  a  system  the 
most  fatal  for  himself,  and  for  the  cause  of  public  order,  of 
any  that  he  could  possibly  devise:  It  is  by  temporisings 
like  these,  that  men  at  the  head  of  affairs,  lose  the  respect 
both  of  friends  and  foes -it  is  by  temporisings  like  these, 
that  in  times  of  fermentation  and  commotion,  Governments 

are 


i 


are  prostrated}  which  might  easily  have  been  upheld  by  an 
erect  and  imposing  attitude. 

I  have  now  gone  through  the  principal  circumstances  in 
Mr.  Adams’s  conduct,  which  have  served  to  produce  my 
disapprobation  of  him  as  Chief  Magistrate.  I  pledge  my 
Varacity  and  honor,  that  I  have  stated  none  which  are  not 
either  derived  from  my  own  knowledge,  or  from  sources  of 
information,  in  the  highest  degree,  worthy  ox  credit. 

I  freely  fubmit  it,  Sir,  to  your  judgment,  whether  the 
grounds  of  the  opinion  I  have  expressed,  are  not  weighty  : 
and  whether  they  are  not  sufficient  to  exculpate  thofe  Fe¬ 
deralists  who  favor  the  equal  support  of  Mr.  Pinckney, 
from  all  blame,  and  myfelf  in  particular,  from  the  unworthy 
imputation  of  being  influenced  by  private  refentment. 

At  the  fame  time,  I  will  admit,  though  it  should  detract 
from  the  force  of  my  reprefentations,  that  I  have  causes  of 
perfonal  dissatisfaction  with  Mr.  Adams.  It  is  not  my 
practice  to  trouble  others  with  my  individual  concerns  ;  nor 
should  I  do  it  at  present,  but  for  the  suggestions  which  have 
been  made.  Even  with  this  incentive,  I  shall  do  it  as  little 

as  possible. 

The  circumstances  of  my  late  military  situation,  have 
much  less  to  do  with  my  perfonal  discontent  than  some 
others.  In  respect  to  them,  I  shall  only  say,  that  I  owed 
my  appointment  to  the  station  and  rank  I  held  to  the  ex- 
press  stipu  ation  of  General  Washington,  when  he  accept¬ 
ed  the  command  of  the  Army,  afterwards  peremptorily  in¬ 
sisted  upon  by  him,  in  opposition  to  the  strong  wishes  of  the 
President  *,  and  that,  though  fccond  in  rank,  I  was  not  pro¬ 
moted  to  the  first  place,  when  it  became  vacant,  by  the  death 

of  the  Commander  in  Chief.  As  to  the  former,  I  should 

have 


46 


have  had  no  cause  to  complain,  if  there  had  not  been  ap¬ 
parent  inconsistency  m  the  measures  of  the  President  •  if  he 
had  not  nominated  m t  first  on  the  list  of  Major  Generals 
and  attempted  afterwards  to  place  me  third  in  rank!— ' 
As  to  the  latter,  the  Chief  Command,  not  being  a  mat- 
on-  of  routine,  the  not  promoting  me  to  it,  cannot  be 
deemed  a  wrong  or  injury  ;  yet  certainly  I  could  not  fee  in 
tne  omission,  any  proof  of  good  will  or  confidence— or  of  a 
disposition  to  console  me  for  the  persecutions  which  I  had 
incessantly  endured.  But  I  dismiss  the  subject,  leaving  to 
others  to  judge  of  my  pretensions  to  the  promotion,  and  of 

Preside'ift.1^  ^  ^  Whkh  they  °Usht  t0  llave  had  with 


On  other  topics,  my  sensations  are  far  less  neutral  —If 
as  I  have  been  assured  from  respectable  authorities,  Mr’ 
Adams  has  repeatedly  indulged  himfelf  in  virulent  and  in¬ 
decent  abufe  of  me;  if  he  has  denominated  me  a  man  desti- 
tute  of  every  moral  principle  ;  if  he  has  stigmatised  me  as 
the  leader  of  a  British  Faction;  then  certainly  I  have  right 
to  think  that  I  have  been  most  cruelly  and  wickedly  traduc 
ed  ;  then  have  I  right  to  appeal  to  all  thofe  who  have  been 
spectators  of  my  public  actions,  to  all  who  are  acquainted  with 
my  private  character,  in  its  various  relations,  whether  fuch 
treatment  of  me  by  Mr.  Aadms,  is  of  a  nature  to  weaken 
or  to  strengthen  Ins  claim  to  the  approbation  of  wife  and  <mod 
men  ;  then  will  1  so  far  yield  to  the  consciousness  of  what  I 
am,  as  to  declare,  that  in  the  cardinal  points  of  public  and 
private  rectitude,  above  all,  in  pure  and  disinterested 
zeal  for  the  interests  and  services  of  this  country— I  shrink 

not  from  a  comparison  with  any  arrogant  pretender  to  supe- 
rior  and  exclusive  merit.  1 


Having  been  repeatedly  informed,  that  Mr.  Adams  had 
delineated  me  as  the  leader  of  a  British  Faction,  and  hav¬ 
ing 


4  7 

ing  understood  that  his  partisans,  to  counteract  the  influence 
of  my  opinion,  were  pressing  the  same  charge  against  me, 
I  wrote  him  a  letter  on  the  subject,  dated  the  first  of  Au¬ 
gust  last.  No  reply  having  been  given  by  him  to  this  let¬ 
ter,  ’,  on  the  first  of  the  present  month,  wrote  him  another; 
of  both  which  letters  I  send  you  copies. 

*  •  ♦  •  J  J  f *  ri  r 

"**  *c.'' 

Of  the  purity  of  my  public  conduct,  in  this,  as  in  other  par¬ 
ticulars,  I  may  defy  the  severest  investigation. 

Not  only  is  it  impossible  for  any  man  to  give  color  to  this 
absurd  charge,  by  a  particle  of  proof,  or  by  any  reasonable 
presumption  ;  but  I  am  able  to  shew,  that  my  conduct  has 
uniformly  given  the  lie  to  it. 

I  never  advised  any  connection  #  with  Great  Britain, 
other  than  a  commercial  one  :  and  in  this  I  never  advocated 
the  giving  to  her  any  privilege  or  advantage  which  was  not 
to  be  imparted  to  other  nations.  With  regard  to  her  pre¬ 
tensions  as  a  belligerent  power  in  relation  to  neutrals,  my 
opinions,  while  in  the  administration,  to  the  best  of  my  re¬ 
collection,  coincided  with  those  of  Mr.  J.  fferson.  When 
in  the  year  1793,  her  depredations  on  our  commerce  disco¬ 
vered  a  hostile  spirit,  I  recommended  one  definitive  effort 
to  terminate  differences  by  ncgociation,  to  be  followed,  if 
unsuccessful,  by  a  declaration  of  war.  I  urged,  in  the  most 
earnest  manner,  the  friends  of  the  Administration,  in  both 

houses 

*  I  mean  a  lasting  connection.  From  what  I  recollect  of  the 
train  of  my  ideas,  it  is  possible  I  may  at  some  time  have  suggested 
a  temporary  connection  for  the  purpofe  of  co-operating  against 
France,  in  the  event  of  a  difinitive  rupture  ;  butof  this  lam  not 
certain,  as  I  well  remember  that  the  expediency  of  the  meafu/  e  wag 
always problematical  in  my  mind,  and  that  I  have  occasionally  dis¬ 
couraged  it. 


houses  of  Congress,  to  prepare  by  sea  and  land  for  the  alter¬ 
native,  to  the  utmost  extent  of  our  resources  j  and  to  an  ex¬ 
tent  far  exceeding  what  any  member  of  either  party  was 
found  willing  to  go.  For  this  alternative  I  became  so  firmly- 
pledged  to  the  friends  and  enemies  of  the  Administration, 
and  especially  to  the  President  of  the  United  States,  in  writ¬ 
ing,  as  well  as  verbally,  that  I  could  not  afterwards  have  re¬ 
tracted  without  a  glaring  and  disgraceful  inconsistency.  And 
being  thus  pledged,  I  explicitly  gave  it  as  my  opinion  to 
Mr.  Jay,  Envoy  to  Great  Britain,  that  “  unless  an  adjustment 
f<  of  the  differences  with  her  could  be  ejjected  on  solid  terms ,  it 
“  would  be  better  to  do  nothing .”  When  the  treaty  arrived,  it 
was  not  without  full  deliberation  and  some  hesitation  that  I 
resolved  to  support  it.  i  he  articles  relative  to  the  settle¬ 
ment  of  differences  were  upon  the  whole  satisfactory  ;  but 
there  were  a  few  of  the  others  which  appeared  to  me  of  a 
different  character.  The.  article  respecting  contraband, 
though  conformable  with  the  general  law  of  nations,  was  not 
in  all  its  features  such  as  could  have  been  wished.  The 
XXV  th  article,  which  gave  asylum  in  our  ports,  under  cer¬ 
tain  exceptions,  to  privateers  with  their  prizes,  was  in  itself 
an  ineligible  one,  being  of  a  nature  to  excite  the  discontent 
of  nations  against  whom  it  should  operate,  and  deriving  its 
justification  from  the  example  before  set  of  an  equivalent  sti¬ 
pulation  in  our  Treaty  with  France.  The  Xllth  article, 
was  in  my  view  inadmissible.  The  enlightened  negociator, 
not  unconscious  that  some  parts  cf  the  Treaty  were  less 
well  arranged  than  was  to  be  desired,  had  himself  hesitated 
to  sign  :  but  he  had  resigned  his  scruples  to  the  conviction 
that  nothing  better  could  be  effected,  and  that  aggregately 
considered,  the  instrument  would  be  advantageous  to  the 
United  States.  On  my  part,  the  result  cf  mature  reflection 
was,  that  as  the  subjects  of  controversy  which  had  threat¬ 
ened  the  peace  of  the  two  nations,  and  which  implicated 
great  interests  of  this  country,  were  in  the  essential  points, 

well 


49 

well  adjusted,  and  as  the  other  articles  would  expire  in 
twelve  years  after  the  ratification  of  the  Treaty,  it  would 
be  wise  and  right  to  confirm  the  compact,  with  the  excep¬ 
tion  of  the  Xllth  article.  Nevertheless,  when  an  account 
was  received  that  the  British  cruizers  had  seized  provisions 
going  to  ports  of  the  French  dominions,  not  in  fact  blockad¬ 
ed  or  besieged,  I  advised  the  President  to  ratify  the  Trea¬ 
ty  conditionally  only,  that  is,  with  express  instructions  not 
to  exchange  ratifications,  unless  the  Eritish  Government 
would  disavow  a  construction  of  the  instrument  authorising 
the  practice  and  would  discontinue  it. 

After  the  rejection  of  Mr.  Pinckney  by  the  Government 
of  France,  immediately  after  the  instalment  of  Mr.  Adams 
as  President,  and  long  before  the  measure  was  taken,  I  urg¬ 
ed  a  member  of  Congress,  then  high  in  the  confidence  of  the 
President,  to  propose  to  him  the  immediate  appointment  of 
three  Commissioners,  of  whom  Mr.  Jefferson^  or  Mr.  Ma¬ 
dison  to  be  one,  to  make  another  attempt  to  negociate.  And 
when  afterwards  Commissioners  were  appointed,  I  express¬ 
ly  gave  it  as  my  opinion,  that  indemnification  for  spoliations, 
should  not  be  a  sine  qua  non  of  accommodation.  In  fine,  I 
have  been  disposed  to  go  greater  lengths  to  avoid  rupture 
with  France  than  with  Great  Britain;  to  make  greater  sacri¬ 
fices  for  reconciliation  with  the  former  than  with  the  latter. 

i 

In  making  this  avowal,  I  owe  it  to  my  own  character  to 
say,  that  the  disposition  I  have  confessed,  did  not  proceed 
from  predilection  for  France  (revolutionary  France,  after  her 
early  beginnings,  has  been  always  to  me  an  object  of  horror) 
nor  from  the  supposition  that  more  was  to  be  feared 
from  France,  a6  an  enemy,  than  from  Great-Britain,  (I 
thought  that  the  maritime  power  of  the  latter,  could  do  us 
most  mischief)  but  from  the  persuasion  that  the  sentiments 
and  prejudices  of  our  country,  would  render  war  with 

G  France 


So 

Trance  a  more  unmanageable  business,  than  war  with  Great- 
Britain. 

Let  any  fair  man  pronounce,  wbeth  r  the  circumstances 
which  have  been  disclosed,  bespeak  the  partisan  ol  Great- 
Britain,  or  the  man  exclusively  devoted  to  the  interests  of 
this  country.  Let  any  delicate  man  decide,  whether  it  must 
not  be  shocking  to  an  ingenuous  mind,  to  have  to  combat 
a  slander  so  vile,  after  having  sacrificed  the  interests  of  his 
family,  and  devoted  the  best. part  of  his  life  to  the  service  of 
that  country,  in  council  and  in  the  field. 

It  is  time  to  conclude— The  statement,  which  has  been 
made,  shews  that  Mr.  Adams  has  committed  some  positive 
and  serious  errors  of  Administration  ;  that  in  addition 
to  these,  he  has  certain  fixed  points  of  character  which  tend 
naturally  to  the  detriment  of  any  cause  of  v.  hich  he  is  the 
chief,  of  any  Administration  of  which  he  is  the  iiead  ;  that  by 
his  ill  humors  and  jealousies  he  has  already  divided  and  dis¬ 
tracted  the  supporters  of  the  Government ;  that  he  has  fur¬ 
nished  deadly  weapons  to  its  enemies  by  unfounded  accusa- 
tions,  and  has  weakened  the  force  of  its  friends  by  decrying 
some  of  the  most  influential  of  them  to  the  utmost  of  his 
power  i  and  let  it  be  added,  as  the  necessary  effect  of  such 
conduct,  that  he  has  made  great  progress  in  undermining 
the  ground  which  was  gained  for  the  government  by  Ins  pre¬ 
decessor,  and  that  there  is  real  cause  to  apprehend,  it  might 
totter,  if  not  fall,  under  his  future  auspices.  A  new  govern¬ 
ment,  constructed  on  free  principles,  is  ah',  ays  weak,  and 
must  stand  in  need  of  the  props  of  a  firm  and  good  adminis¬ 
tration  •,  till  time  shall  have  rendered  its  authority  venera¬ 
ble,  and  fortified  it  by  habits  of  obedience. 

Y  T  with  this  opinion  of  Mr.  *  dams,  I  have  finally  re- 

solved  not  to  advise  the  withholding  from  him  a  Angle  vote. 

The 


52 


to  tRe  public  welfare  as  well  as  to  the  vindication  of  nrr£ 
friends  and  myself,  did  not  appear  to  me  justifiable. 

The  restraints,  to  which  I  submit,  are  a  proof  of  my  dis¬ 
position  to  sacrifice  to  the  prepossessions  of  those,  with 
whom  I  have  heretofore  thought  and  acted,  and  from  whom 
*n  the  present  question  I  am  compelled  to  differ.  To  re-' 
frain  from  a  decided  opposition  to  Mr.  Adams’s  re-election 
has  been  reluctantly  sanctioned  by  my  judgment ;  which  has 
been  not  a.  little  perplexed  between  the  unqualified  convic¬ 
tion  of  his  unfitness  for  the  station  contemplated,  and  a 
sense  of  the  great  importance  of  cultivating  harmony  among 
the  supporters  of  the  Government ;  on  whose  firm  union 
hereafter  will  probably  depend  the  preservation  of  order, 
tranquillity,  liberty,  property ;  the  security  of  every  social 
and  domestic  blessing. 


I 


Kew-Fork)  August  I,  1800. 

Sir, 

It  has  been  repeatedly  mentioned  to  me,  that  you 
have,  on  different  occasions,  asserted  the  existence  of  a 
British  Faction  in  this  country  ;  embracing  a  number  cf 
leading  or  influential  characters  of  the  Federal  Party, 
(as  usually  denominated)  and  that  you  have  sometimes 
named  me,  at  others,  plainly  alluded  to  me,  as  one  of 
this  description  of  persons.  And  I  have  likewise  been 
assured,  that  of  late  some  of  your  warm  adherents  for 
electioneering  purposes,  have  employed  a  corresponding 
language. 


I  MUST 


The  body  of  Federalists,  for  want  of  sufficient  knowledge  of 
facts,  are  not  convinced  of  the  expediency  of  relinquishing 
him.  It  is  even  apparent,  that  a  large  proportion  still  retain 
the  attachment  which  was  once  a  common  sentiment. — 
Those  of  them  therefore,  who  are  dissatisfied,  as  far  as  my 
information  goes,  are,  generally  speaking,  willing  to  forbear 
opposition,  and  to  acquiesce  in  the  equal  support  of  Mr. 
Adams  with  Mr.  Pinckney,  whom  they  prefer.  Have 
they  not  a  claim  to  equal  deference  from  those  who  conti¬ 
nue  attached  to  the  former  ?  Ought  not  these,  in  candor,, 
to  admit  the  possibility  that  the  friends  who  differ  from 
them,  act  not  only  from  pure  motives,  but  from  cogent  rea¬ 
sons  ?  Ought  they  not,  by  a  co-operation  in  General  Pinck¬ 
ney,  to  give  a  chance  for  what  will  be  a  safe  issue,  suppos¬ 
ing  that  they  are  right  in  their  preference,  and  the  best 
issue,  should  they  happen  to  be  mistaken  ?  Especially,  since, 
by  doing  this,  they  will  increase  the  probability  of  excluding 
a  third  candidate,  of  whose  unfitness  all  sincere  federalists 
are  convinced.  If  they  do  not  pursue  this  course,  they  will 
certainly  incur  an  immense  responsibility  to  their  friends  and 
to  the  government. 

To  promote  this  co-operation,  to  defend  my  own  charac¬ 
ter,  to  vindicate  those  friends,  who  with  myself  have  been 
unkindly  aspersed,  are  the  inducements  for  writing  this  let¬ 
ter..  Accordingly,  it  will  be  my  endeavor  to  regulate  the, 
communication  of  it  in  such  a  manner  as  will  not  be  likely 
to  deprive  Mr.  Adams  of  a  single  vote.  Indeed,  it  is  much, 
my  wish  that  its  circulation  could  forever  be  confined  within 
narrow  limits.  I  am  sensible  of  the  inconveniences  of  giv¬ 
ing  publicity  to  similar  devdopement  of  the  character  of 
the  Chief  Magistrate  of  our  country;  and  I  lament  the  ne¬ 
cessity  of  taking  a  step  which  will  involve  that  result.  Yet 
to  suppress  truths,  the  disclosure  of  which  is  so  interesting; 


I 


54 

But  thus  much  I  will  affirm*  that  by  whomsoever  a 
charge  of  the  kind  mentioned  in  my  former  letter,  may 
at  any  time,  have  been  made  or  insinuated  against 
me,  it  is  a  base,  wicked  and  cruel  calumny  \  destitute 
even  of  a  plausible  pretext,  to  excuse  the  folly,  or  mask 
the  depravity  which  must  have  dictated  it. 

With  due  respect, 

I  have  the  honor  to  be* 

Sir. 

Your  obedient  servant, 

A.  H» 


To  JOHN  ADAMS,  Es(^  ? 
President  oj  the  U.  States.  S 


I  must,  Sir,  take  it  for  grante-d,  that  you  cannot  have 
made  such  assertions  or  insinuations  without  being  wil¬ 
ling  to  avow  them,  and  to  assign  the  reasons  to  a  Par¬ 
ty  who  may  conceive  himself  injured  by  them.  I  there¬ 
fore  trust  that  you  will  not  deem  it  improper,  that  I 
apply  directly  to  yourself  to  ascertain  from  you,  in  re¬ 
ference  to  your  own  declarations,  whether  the  informa¬ 
tion  I  have  received,  has  been  correct  or  not ;  and  if 
correct,  what  are  the  grounds  upon  which  you  have 
founded  the  suggestion. 

With  Respect, 

I  have  the  honor  to  be. 

•i.  . 

Sir, 

Your  obedient  servant, 

A.  H- 

To  JOHN  ADAMS,  Esq,? 

President  of  the  U.  States .  3 


Kezu  York)  October  1,  i-8sg. 

Sir, 

The  time  which  has  elapsed  since  my  letter  of  the 
1  st  of  August  was  delivered  to  you,  precludes  the  fur¬ 
ther  expectation  of  an  answer. 

From  this  silence,  I  will  draw  no  inference  5  nor  will 
I  presume  to  judge  of  the  fitness  of  silence  on  such  an 
occasion  on  the  part  of  the  Chief  Magistrate  of  a  Re¬ 
public,  towards  a  Citizen,  who,  without  a  stain,  has  dis¬ 
charged  so  many  important  public  trusts. 


y 


